C O N T E X T 1 2 6 : S E P T E M B E R 2 0 1 2 15 civic and similar classes of buildings which are threatened with demolition. Such demolitions will now generally fall under Part 31. Anyone who wishes to carry out demolition which falls under Part 31 must (except in the case of demolition immediately necessary in the interests of health and safety – paragraphA.2 (a)) apply to the local planning authority for a determination as to whether the authority’s prior approval will be required for the method of demolition and any proposed restoration of the site.The application must include a written description of the development. There are also requirements for publicity by way of a site notice (paragraph A.2 (b)).The local authority then has 28 days in which to say whether prior approval is needed or not. If prior approval is required, then the demolition shall not take place until the approval has been given. If the authority has not respondedwithin 28 days of receiving the application, then demolition can take place. Arguably, the need for prior approval under Part 31 could be used to secure the investigation and recording of (undesignated) buildings which are ‘heritage assets’ and which are to be demolished.The government’s objectives and policies for planning and the historic environment are set out in the National Planning Policy Framework. Paragraph 141 says ‘local planning authorities should also require developers to record and advance understanding of the significance of any heritage assets to be lost (wholly or in part) in a manner proportionate to their importance and the impact, and tomake this evidence (and any archive generated) publicly accessible.’ Given this, it would not seem unreasonable, where it is proposed to demolish a building which is a ‘heritage asset’ (that is, something which has been identified as having a degree of significance meriting consideration in planning decisions – NPPF Annex 2: Glossary), for the local authority to require that the method of demolition (as described in the applicant’s written description of the development, required under Part 31) includes arrangements for investigating and recording the building during the course of its demolition. The second implication of the decision is that demolition of any building which is a listed building, a building in a conservation area or a scheduled monument now constitutes ‘development’. Again, such demolitions will fall under Part 31, but it appears that they will (under paragraph A2 (b) of Part 31) be ‘excluded development’. ‘Excluded development’ is defined in paragraph A3 (b) of Part 31 as including demolition which is ‘required or permitted to be carried out under any other enactment’. It therefore seems that, if listed building consent, conservation area consent or scheduled monument consent (as the case may be) has been granted for a demolition, the requirements of Part 31 do not apply (although the demolition still constitutes ‘development’). Third, the decision enables local planning authorities to withdraw permitted development rights for the demolition of those commercial buildings which would not have previously needed planning permission. It now becomes possible to protect such buildings without listing or inclusion in a conservation area. The SAVE case has already prompted Article 4 directions to be made to protect parts of Grimsby Fish Docks and the Baring Hall Hotel in Lewisham. Fourth, in certain circumstances, projects of demolition may require environmental impact assessment under what is now the Consolidated EIADirective 2011/92/EU and the relevant UK regulations which implement the Directive in UK law (in England, notably theTown and Country Planning (Environmental Impact Assessment) Regulations 2011, hereafter ‘the 2011 Regulations’). If a proposed demolition falls under the scope of the EIA Directive, then permitted development rights will not apply and environmental assessment will be required, along with an application for planning permission. There are two situations in which this could occur: •• If a proposed demolition falls within Schedule 2 of the 2011 Regulations, and there has not been a screening opinion or screening direction to the effect that EIA is not required. •• If the secretary of state has made a direction under Regulation 4 (9) of the 2011 Regulations that EIA is required even if the development falls outside the thresholds and criteria specified in Schedule 2. Again the SAVE decision had immediate effects. In R (SAVE Britain’s Heritage) v Gateshead Metropolitan Borough Council the secretary of state conceded that the demolition of houses required EIA screening. He also decided that EIA was required for the demolition of 271 houses in theWelsh Streets, Liverpool, therefore requiring a planning application to be made for that scheme. One additional comment may bemade. In his judgment, Lord Justice Sullivan made the following remark: ‘It is a curious, and thoroughly unsatisfactory, feature of the [1995] Direction that those demolitions which are most likely to have an effect on the cultural heritage – the demolition of listed buildings, ancient monuments and buildings in a conservation area – are effectively excluded from the ambit of the [EU] Directive.’ This is a clear judicial acknowledgement of the relevance and importance of the EIA Directive for protecting ‘heritage’, as well as other aspects of the environment such as air, water and wildlife. Prior approval The decision in SAVE Britain’s Heritage brings the demolition of buildings which are neither dwellinghouses nor adjoining a dwelling-house under planning control. In general such demolitions will be covered by permitted development rights under Part 31 of the GPDO 1995 (unless those rights have been withdrawn by an Article 4 direction). In cases under Part 31, the local planning authority can require prior approval of the method of demolition and any proposed restoration of the site. In some instances, however, environmental impact assessment may be required, in which case permitted development rights no longer apply. In other cases, even if EIA is not required, it should be possible to require investigation and recording of a building during the course of its demolition, under the Part 31 arrangements for prior approval of the method of demolition, if the building is a ‘heritage asset’ (as defined in the NPPF). Roger MThomas is a barrister with English Heritage. Richard Harwood is a barrister with Thirty Nine Essex Street Chambers.
RkJQdWJsaXNoZXIy MjgyMjA=