To what extent, if any, does the modern law of town and country planning control the demolition of buildings?
The question of whether demolition falls within the statutory definition of “development” has been called a “fascinating problem” (by Widgery J in Coleshill & District Investment Co Ltd v Minister of Housing and Local Government [8] 1 All ER 62).
The definition of “development” was introduced by the Town and Country Planning Act 1947 and ran as follows:
the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
This definition is now to be found in section 22(1) of the Town and Country Planning Act 1971. Soon after the 1947 Act introduced comprehensive controls over development, the Minister of Town and Country Planning issued a circular to the effect that he had been advised that demolition did not, in itself, constitute development of land — although it might form part of a building operation or be preparatory to the making of a material change in the use of the land. (See Ministry of Town and Country Planning Circular No 67 1949.)
The view that demolition in itself (“demolition per se”) was outside the definition of “development” seems not to have been questioned by the professions, or by the courts, for the first 20 years after the 1947 Act. Thus, for example, in Howell v Sunbury-on-Thames UDC (1963) 15 P&CR 26 Marshall J stated that “planning permission is not required to demolish any property”. His Lordship took the view that to describe the clearing of a site as “developing of a site” was “to do violence to the accepted meaning of the word ‘development’”.
In 1969, the Coleshill case (above) came before the House of Lords: see [9] 2 All ER 525. It involved a group of buildings previously used as an ammunition depot. Around each building there was a blast wall, some 9 ft high, and against the outer face of each wall there was a sloping embankment of rubble, brick, ash and soil.
The developer started to remove the embankments (which, from the outside, looked like green mounds obscuring the concrete buildings entirely). On receiving complaints about the resulting eyesore, the local planning authority served an enforcement notice, requiring the land to be restored to its previous condition. Following an appeal, the minister upheld the enforcement notice and took the view that the removal of the embankments was an “engineering operation” and that the walls were, in any event, an integral part of the ammunition depot. The Divisional Court quashed the minister’s decision, but the Court of Appeal allowed an appeal by the local planning authority. In the House of Lords, Lord Guest stated:
There is nothing in [the section] or elsewhere which makes it plain that demolition per se or simpliciter is necessarily excluded from the very wide words of [the section].
The other law lords were less categorical. Lord Wilberforce conceded that it was not easy to construe the section containing the definition of “development” (then section 12(1) of the Town and Country Planning Act 1962). Lord Pearson took the view that it was not right to say: “This is a demolition or removal operation, therefore it is development.” On the other hand, Lord Pearson held that such work might come within the definition of a “building operation”, for example because it might amount to a structural alteration of a building or because it was such an operation as might normally be undertaken by a person carrying on business as a builder. Alternatively, it might be an “engineering operation”: “Whether it is or is not any of those things depends on the facts of the particular case” ([9] 2 All ER at p 543). In the event, the House of Lords unanimously held that the minister had not made any error of law in construing the demolition of the walls as partial demolition of the ammunition depot, materially affecting its external appearance and, therefore, amounting to “development” within the meaning of the Act.
In Iddenden v Secretary of State for the Environment [2] 1 WLR 1433, the Court of Appeal held that the demolition of a Nissen hut and lean-to structure did not amount to a breach of planning control. However (unlike the Coleshill case), this was not an act of partial demolition but an act of total demolition carried out on a small scale. In City of Glasgow District Council v Secretary of State for Scotland [1982] JPEL 374, the Court of Session held that the demolition of the upper storeys of a tenement block amounted to “development” of the land. (In that case, however, planning was not required because the works had been ordered by the local authority, under statutory powers, for safety reasons.)
It should be noted that the view that demolition is, generally speaking, outside planning control is strengthened by the fact that Parliament has provided special planning controls in the case of “listed buildings” (buildings of special architectural or historic interest) and buildings in conservation areas. It would not, of course, have been necessary for Parliament to provide specific protection against demolition if, as a matter of general planning control, such protection already existed for all buildings.
In 1973, Mr George Dobry QC was asked by the Secretary of State for the Environment to review the development control system and in the following year he reported in favour of extending development control to cases of demolition. The main reasons for this recommendation were as follows:
(1) There was uncertainty as to the existing law. “Since post-war planning controls were introduced, there was doubt whether demolition in itself could constitute development. Although the topic has been raised before the highest courts, no clear guidance has been given. The DOE apparently now takes the view that demolition may constitute development in some circumstances. Thus there is uncertainty about the legal position which should be removed.”
(2) There was inconsistency in the law. Planning controls existed in the case of listed buildings and buildings in conservation areas, but such controls did not necessarily exist in the case of non-listed buildings outside conservation areas.
(3) The aftermath of demolition was detrimental to the environment. “Barren sites, inadequately fenced, often become a dumping ground causing general deterioration of the neighbourhood. Vacant sites are despoiled with random deposits of furniture, broken bottles, dumped cars, and other paraphernalia of vandalism and disorder.”
(4) Demolition can be used as a “fait accompli” by developers. Developers can demolish buildings without first obtaining permission for any new buildings, knowing that the local planning authority will not be able to rely on the existing use of the land as a reason for refusing planning permission and knowing also that the local authority will wish to avoid the site becoming a derelict dump.
(5) Uncontrolled demolition reduces housing stock. The premature demolition of houses, in anticipation of future planning permission, causes public disquiet in areas of housing shortage.
In addition to the very persuasive Dobry report, there is clearly an inconsistency in the approach of the courts to the problem of demolition. If partial demolition is a form of “development” and total demolition is not (unless it is so substantial that it amounts to an engineering operation), where should the courts draw the line?
After the Dobry report, the Secretary of State for the Environment issued a circular (No 113 of 1975) in which he stated that he did not propose to seek further powers from Parliament to control demolition. However, he went on to state that he could not rule out altogether “the possible need for such powers in the future”. The main reasons for this decision were:
(a) The Community Land Bill (then before Parliament) would remove much of the incentive to demolish buildings prematurely. (The Community Land Bill subsequently became the Community Land Act 1975, but this Act was repealed by section 101 of the Local Government, Planning and Land Act 1980.)
(b) The control of demolition would necessitate additional resources being made available to local planning authorities.
Finally, therefore, it would seem to be for financial reasons that the DOE does not want to extend the law of town and country planning so that it controls demolition per se. However, in the light of Coleshill, it is interesting to note one minor amendment to the definition of “development”, introduced by section 1 of the Town and Country Planning (Minerals) Act 1971. This provided that certain “extractive” and “removal” operations are to be considered as “mining” operations for the purposes of section 22 of the Town and Country Planning Act 1971 (and, hence, to be a form of “development”). Among these specified operations is “the extraction of minerals from a disused railway embankment”. It would, of course, be incongruous if the removal of some minerals from a disused railway embankment amounted to “development” in law but the total removal of some other sort of embankment were not considered to be “development” at all.