The law on demolishing a building is not as straightforward as it might seem. After a flurry of court cases on demolition, it is a good time to look at what we can learn from recent judgments and recap how to flatten a site without being bulldozed by the law.
Here are five top tips:
1 Planning permission
As demolition is a type of development, it is an offence to carry it out without planning permission. As the Samuel Smith Old Brewery vs Redcar and Cleveland Borough Council case shows, even if the council requires demolition because the building is unsafe, planning permission for its removal is still needed – although being required to pull it down for health and safety reasons could be a defence.
Planning consent for demolishing a building can take different forms and there are exemptions for small buildings (less than 50 cubic metres) and other structures in certain circumstances. If you do not have express planning permission, you may be able to use permitted development rights, but be careful: the rights do not apply to all buildings and are subject to conditions and limitations.
2 Special protections
If the building is listed, a separate listed building consent will be needed. Pubs, concert halls, theatres and live music venues have special protection even if they are not listed, as do statues and memorials in place for 10 years.
Permitted development rights do not apply in conservation areas, so you will need to apply for planning permission there. Watch out for changes to conservation area boundaries. In the case of Future High Street Living vs Spelthorne Borough Council, the council widened the conservation area to include the building, so the permitted development right could not be relied upon.
3 CIL liabilities
If you are demolishing to clear the site for redevelopment, be mindful of how this might affect your Community Infrastructure Levy (CIL) liability for the new buildings. Sometimes, it is possible to reduce your CIL liability by deducting floorspace of in-use buildings. There are time constraints over whether a building qualifies as an in-use building, however, so it is important to consider when to carry out the demolition. Delaying the demolition could save you thousands of pounds.
4 Expiry dates
All planning permissions have an expiry date and must be ‘implemented’ before the deadline to keep them alive. Implementation is secured by the carrying out of a “material operation comprised in the development”.
Demolition of a building is a material operation. In the Atwill vs New Forest National Park Authority case, demolition works were used to argue that the planning permission had been kept alive. However, what was eventually built was so different to that permitted by the planning permission that the judge was not convinced the demolition related to the permission and held that the permission was not kept alive by the demolition works.
To rely on demolition as implementation, you need to ensure that: (a) demolition is authorised by the permission in question (ideally in the description of development); and (b) what is eventually built accords with the permission. An agreed demolition plan or demolition-related conditions can help, but in the absence of these, it is safer to carry out a material operation that matches up with approved plans to show what is clearly comprised in the development.
5 Planning conditions
If your planning permission covers demolition, the council may take those works to mean that you are implementing a planning permission, even if that is not your intention.
Check the planning conditions and Section 106 agreement to see if demolition works are carved out so that any conditions or obligations are not triggered. If the relevant planning permission is caught by the CIL, you may wish to make a minor amendment to the permission so that demolition is excluded if you can use permitted development rights to demolish instead.
Kathryn Hampton is a senior expertise lawyer at Ashurst
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