The Scottish Government

Circular 2/1995

THE TOWN AND COUNTRY PLANNING (GENERAL PERMITTED DEVELOPMENT) (SCOTLAND) AMENDMENT (NO.3) ORDER 1994: DEMOLITION, TOLL ROAD FACILITIES AND MISCELLANEOUS AMENDMENTS

The Chief Executive
Regional and Islands Councils

The Chief Executive
District Councils (except in Highlands, Borders and Dumfries and Galloway Regions)

Our Ref: PGD/1/23
11 January 1995

Planning Series:

National Planning Policy Guidelines (NPPGs) provide statements of Government policy on nationally important land use and other planning matters, supported where appropriate by a locational framework.

Circulars, which also provide statements of Government policy, contain guidance on policy implementation through legislative or procedural change.

Planning Advice Notes (PANs) provide advice on good practice and other relevant information.

Statements of Government policy contained in NPPGs and Circulars may, so far as relevant, be material considerations to be taken into account in development plan preparation and development control.

Introduction

1. This Circular explains the provisions of the Town and Country Planning (General Permitted Development) (Scotland) Amendment (No.3) Order 1994 (SI 1994 No.3294) which comes into force on 3 February 1995. This Order amends the 1992 General Permitted Development Order (GPDO) by introducing a new class of permitted development for toll road facilities, a new class for demolition (as part of a package of new planning controls over demolition) and a prior notification arrangement for the erection of buildings solely for the protection of plant or machinery by gas and electricity statutory undertakers. A variety of minor and technical amendments are also included. Copies of the Amendment Order are enclosed for Chief Executives only.

Amendments to the General Permitted Development Order 1992

2. The amendments to the GPDO are explained in detail below:

2.1 Article 3(1) is amended to make the provisions of the GPDO subject to Regulations 60 to 63 of the Conservation (Natural Habitats Etc) Regulations 1994. These Regulations provide that any development which is permitted development, is likely to have a significant effect on a European site and is not directly connected with or necessary to the management of the site, shall not be begun without the approval of the planning authority. The Regulations also set out the arrangements for obtaining the planning authority's approval and for consulting Scottish Natural Heritage. Further information on the Habitats Regulations will be given in a SOEnD Circular which will be issued shortly;

2.2 Class 1 - paragraph (2)(a)(i) is amended to apply the same limit on extensions to houses within the curtilage of listed buildings as applies to terrace houses and houses in conservation areas;

2.3 Class 3 - paragraphs (2)(b) and (c) have been reworded to make it clear that the limits in these paragraphs apply to a building as altered or extended and not just to a new building;

2.4 Classes 18(4)(a)(i) and 22(3)(a)(i) - the references to siting and means of construction of a private way, which were included in error, have been deleted;

2.5 Class 18 - in paragraph (5)(a), the following Councils which were accidentally omitted from the list of authorities which cover the areas of former crofting counties, are added:

Lochaber District Council
Skye and Lochalsh District Council
Ross and Cromarty District Council
Orkney Islands Council
Shetland Islands Council.

The reference to Badenoch and Strathspey District Council is also corrected;

2.6 Class 34 - in paragraph (l) "operational" replaces "occupational" to correct a printing error;

2.7 Class 39(3)(c) and Class 40(3)(d) - these new paragraphs require a public gas supplier and an electricity statutory undertaker to apply to the planning authority for a determination as to whether the prior approval of the authority is required for the siting, design and external appearance of a building solely for the protection of plant or machinery. The development cannot be started until: (a) the authority informs the developer that prior approval is not required, or (b) prior approval is given, or (c) 28 days has passed since the application was received by the planning authority without them making any decision as to whether approval is required or notifying the developer of their decision. This prior approval arrangement is the same as applies to other classes of permitted development including the new demolition class (Class 70) (see paragraph 2.9 below). The advice in Annex B on handling prior approvals for demolition applies equally to prior approval under these classes;

2.8 Class 52 - the wording of this class has been revised to make its meaning clearer. No substantial change has been made;

2.9 Part 23, Class 70 - the Planning and Compensation Act 1991 (Commencement No.17) (Scotland) Order 1994 (SI 1994 No.3292) brings Section 44 of the Planning and Compensation Act 1991 into force on 3 February 1995. (The Commencement Order was sent to planning authorities with SOEnD Circular No 1/1994 on the Town and Country Planning (General Development Procedure) (Scotland) Amendment (No.2) Order 1994.) Section 44 brings demolition within the definition of "development" in Section 19 of the Town and Country Planning (Scotland) Act 1972 (the 1972 Act) and so makes demolition subject to planning controls. Under Section 19(2)(g) of the 1972 Act, the Secretary of State has made the Town and Country Planning (Demolition which is not Development) (Scotland) Direction 1994 (Annex A to this Circular). This Direction excludes from planning controls demolition of all buildings, other than:- (i) dwellinghouses; (ii) buildings containing flats; and (iii) buildings adjoining dwellinghouses or buildings containing flats. The new Class 70 grants permitted development status, subject to a prior approval arrangement in most cases, for the demolition of buildings not covered by the Direction. This new package of controls over demolition is explained in more detail in Annex B to this Circular;

2.10 Part 24, Class 71 - this new class introduces permitted development rights for development consisting of facilities for the collection of tolls. It applies to buildings, structures or other facilities reasonably required in connection with the collection of tolls for a toll road. It does not apply where:

2.10.1 the development is not situated within 100 metres of the boundary of the toll road;

2.10.2 the height of any building or structure would exceed 7.5 metres (excluding any rooftop structure) or 10 metres (including any rooftop structure). Rooftop structure includes lift machinery and apparatus or structure required for safety purposes or for the provision of heating, ventilation, air conditioning, water, gas or electricity;

2.10.3 the total floor area of all buildings (other than toll collection booths) within the toll collection area would be more than 1,500 square metres.

Permitted development under this class is granted subject to the condition that the developer must apply to the planning authority for a determination as to whether the prior approval of the authority is required for the siting, design and external appearance of the facilities. The development cannot be started until: (a) the authority informs the developer that prior approval is not required, or (b) prior approval is given, or (c) 28 days has passed since the application was received by the planning authority without them making any decision as to whether approval is required or notifying the developer of their decision. This prior approval arrangement is the same as applies to other classes of permitted development including the new demolition class (Class 70), see paragraph 2.9 above. The advice to planning authorities in Annex B on handling of prior approvals for demolition applies equally to prior approvals under this class;

2.11 Schedule 2 - paragraph (4) has been replaced to correct a minor printing error.

Financial and Manpower Implications

3. The new planning controls over demolition are intended to provide the minimum necessary level of control by exempting most demolitions from planning controls and granting permitted development to the remainder, subject to a prior approval arrangement. It is recognised that the prior approval arrangement will have some cost implications for planning authorities. However, it is expected that there will be relatively few cases where prior approval is necessary and the additional costs will be offset, at least to some degree, by the fee (currently £25) which must accompany each application for determination as to whether prior approval is required.

4. Prior approval arrangements are also applied to toll road facilities (Class 71) and to buildings to protect gas and electricity plant or machinery (Class 39(1)(e) and 40(1)(e)). It is anticipated that there will be very few cases involving toll road facilities, indeed many authorities will not receive any. Thus the financial implications are not expected to be significant. As regards gas and electricity plant buildings, these are already subject to the approval of the planning authority, without a fee being payable. The new prior approval arrangement, which is subject to a fee, should therefore reduce authorities' costs. The Fees Regulations have been amended accordingly.

5. The remaining amendments to the GPDO are minor and technical changes, many of which clarify existing provisions, and should not have any significant cost implications for authorities.

Further Copies and Enquiries

6. Enquiries about the content of this Circular should be addressed to Mrs E Hislop (031-244 4275). Further copies and a list of current planning Circulars may be obtained from Room 6/84, New St Andrew's House, Edinburgh, EH1 3TG (031-244 4082).

THE TOWN AND COUNTRY PLANNING (DEMOLITION WHICH IS NOT DEVELOPMENT) (SCOTLAND) DIRECTION 1994

The Secretary of State, in exercise of the powers conferred on him by section 19(2)(g) of the Town and Country Planning (Scotland) Act 1972 (a) and all other powers enabling him in that behalf, hereby gives the following Direction:

1. This Direction shall come into force on 3rd February 1995.

2.- (1) The demolition of the following descriptions of building shall not be taken, for the purposes of the Town and Country Planning (Scotland) Act 1972 ("the 1972 Act"), to involve development of land:

(a) subject to paragraph (2), any building other than-

(i) a dwellinghouse;

(ii) a building containing one or more flatted dwellinghouses; or

(iii) a building having a mutual wall with, or having a main wall adjoining the main wall of, a dwellinghouse;

(b) any building which is a listed building within the meaning of section 52(7) of the 1972 Act (b) ;

(c) any building in a conservation area within the meaning of the 1972 Act;

(d) any building which is a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979;

(e) any building the cubic content of which, measured externally, does not exceed 50 cubic metres;

(f) the whole or any part of any gate, fence, wall or other means of enclosure.

(2) A building is not to be regarded as a dwellinghouse or as containing a flatted dwellinghouse for the purposes of paragraph (1)(a) if the use of that building, or part of that building, as a dwellinghouse is ancillary to any non-residential use of that building or other buildings on the same site.

3. In this direction:

(a) "building" does not include part of a building, except for the purposes of paragraph (1)(f) and paragraph (2) of article 2;

(b) each house in a pair of semi-detached houses, and every house in a row of terrace houses (whether or not, in either case, the house is in residential use), is to be regarded as a building;

(c) "flatted dwellinghouse" means a separate and self-contained set of premises whether or not on the same floor, constructed or adapted for use for the purpose of a dwelling, and forming part of a building from some other part of which it is divided horizontally;

(d) "site" means the whole area of land within a single unit of occupation.

4. This Direction may be cited as the Town and Country Planning (Demolition which is not development) (Scotland) Direction 1994.

M T AFFOLTER
Assistant Secretary
Scottish Office Environment Department

New St Andrew's House
Edinburgh
EH1 3SZ
19 December 1994

PLANNING CONTROLS OVER DEMOLITION

1. The Government has introduced new planning controls over the demolition of buildings. This Annex gives guidance on the scope and operation of these controls, which come into force on 3 February 1995.

Scope of Controls

2. The Planning and Compensation Act 1991 (Commencement No 17) (Scotland) Order 1994 brings into force Section 44 of the Planning and Compensation Act 1991 and certain consequential amendments in Schedule 13 to that Act. Section 44 amends Section 19 of the Town and Country Planning (Scotland) Act 1972 (the 1972 Act) to bring the demolition of buildings within the meaning of "building operations" for the purposes of the 1972 Act, and thus within the meaning of development which is subject to planning control. This change to Section 19 does not affect the need for planning permission for demolition which amounts to an engineering operation. The partial demolition of a building is also development because Section 19 applies to "demolition of buildings" and the definition of "building" in Section 275 includes part of a building.

3. In introducing these changes it is not intended that the demolition of all types of building should be subject to planning controls. Accordingly, the Secretary of State has made the Town and Country planning (Demolition which is not Development) (Scotland) Direction 1994 (see Annex A). This excludes the demolition of certain types of building from the new planning controls. It should be noted that the Direction applies only to whole buildings and so partial demolition of any type of building remains development.

4. The exclusions in the Direction fall into 4 main categories:

4.1 First, the Direction excludes listed buildings, buildings in conservation areas and scheduled monuments from the new controls. Such demolitions are already subject to control under other legislation (Parts IV and XV of the 1972 Act and the Ancient Monuments and Archaeological Areas Act 1979);

4.2 Second, the Direction excludes buildings of less than 50 cubic metres (when measured externally);

4.3 Third, the Direction excludes every building that is not either: (i) a dwellinghouse, (ii) a building containing flats, or (iii) a building having a mutual wall with or a main wall adjoining the main wall of a dwellinghouse or a building containing flats. The definition of a dwellinghouse should be taken to include a building in use as a dwelling and, if not currently in use, last used for that purpose. It includes detached, semi-detached or terraced houses; and

4.4 Fourth, the Direction excludes gates, fences, walls or other means of enclosure.

5. In practice, the new controls will therefore apply mainly to the demolition of dwellinghouses, including flats, and buildings adjoining dwellinghouses. The demolition of buildings such as warehouses, factories, offices, churches, theatres and shops will not be subject to the new controls unless they are adjoining a dwellinghouse. The demolition of certain dwellinghouses may fall outside the new controls if the residential use is ancillary to a non-residential use of the building or the site (for example a caretaker's house on an industrial site, or a caretaker's flat in an office building).

6. For the purpose of the new controls, each house in a pair of semi-detached houses and every house in a row of terraced houses is to be regarded as a separate building, whether or not in residential use. This means that a house which has been converted to some non-residential use is only excluded from these controls where any adjoining house is not in use as a dwellinghouse.

Permitted Development Rights

7. The Town and Country Planning (General Permitted Development) (Scotland) Amendment (No.3) Order 1994 inserts a new Part 23 into the Town and Country Planning (General Permitted Development) Order (the GPDO) to grant planning permission for the demolition of all buildings not excluded from these controls by virtue of the Direction (see paragraph 3-6 above), subject to the exception described in paragraph 9 below. In some cases, that permission may not be exercised until the planning authority have determined whether they require to give prior approval to the demolition (see paragraphs 11-19 below). Article 3(5)(c) provides that no Part of the GPDO other than the new Part 23 allows demolition of a whole building. This provision does not apply to part of a building and so other Parts would permit partial demolition of a building whether this is necessary to carry out the development permitted by that Part.

8. The determination of the planning authority is not required where demolition is:

i. urgently necessary in the interests of health and safety, on condition that the developer gives a written justification of the demolition to the planning authority as soon as reasonably practicable after the demolition has taken place; or

ii. taking place on land for which planning permission for redevelopment has been granted or deemed to be granted where the demolition is necessary in order to implement that planning permission; or

iii. required as a result of demolition order, made under the Housing (Scotland) Act 1987; or

iv. required as a result of an enforcement notice issued under Part V of the Town and Country Planning (Scotland) Act 1972 (the 1972 Act); or

v. required as a result of an order requiring the removal of the building made under Section 49 of the 1972 Act which has been confirmed; or

vi required by virtue of a planning agreement or obligation made under Section 50 of the 1972 Act; or

vii. required or permitted under any other legislation.

9. Permitted development rights will not apply where a building has been made unsafe or uninhabitable through the action of neglect of anyone having an interest in the land on which the building stands and can be made secure through repairs or temporary support. In cases where an unsafe or uninhabitable building has been demolished (see paragraph 8), and repairs or temporary support to that building were not practicable, the planning authority may wish to satisfy themselves that the building was not made unsafe or uninhabitable through action or neglect by any interested person. The written justification provided, which should preferably include objective evidence that such demolition was necessary, will be the starting point for their consideration.

Building (Scotland) Act Requirements

10. These permitted development rights do not affect, and are not affected by, any requirement to obtain a building warrant from the local authority under Section 6 of the Building (Scotland) Act 1959 for the demolition of any building.

Prior Approval

11. Before exercising a permitted development right to demolish a building the developer should, except in the circumstances described in paragraph 8, apply to the planning authority for a determination as to whether the prior approval of the authority will be required for the method of the proposed demolition and any proposed restoration of the site. (A Building (Scotland) Act notification is not sufficient for this purpose.) The planning authority will then have 28 days to consider whether they wish to give their prior approval to the method and restoration. If the authority do not notify the developer within the 28 day period that prior approval of these details is required, demolition may proceed according to the details submitted to the authority in the application for determination or to those otherwise agreed.

12. Where the authority respond that prior approval is needed before the demolition may proceed, the developer will have the right of appeal to the Secretary of State if approval is refused, or if a decision on the details submitted is not given within the statutory 2 month period. There is no right of appeal against the decision by the planning authority to require approval of details.

13. This process gives planning authorities a means of regulating the details of demolition in order to minimise its impact on local amenity. Demolition should be carried out in accordance with the details agreed by the authority; demolition undertaken in breach of those details may be the subject of enforcement action (see paragraph 24).

14. If the authority wishes to prevent the demolition from taking place, it would be necessary to serve an Article 4 direction, which would have to be confirmed by the Secretary of State. Such directions cannot apply to any demolition which would not be development because it is included in the Secretary of State's Direction (Annex A to this Circular).

Handling

15. When applying for a determination the developer should notify persons having an interest in neighbouring land, following the procedures set out in Article 9 of the General Development Procedure Order (the GDPO) in the same way as for an application for planning consent. The notice to be served on neighbours should be in the form set out in Schedule 4 of the GDPO, except that it should be modified to refer to "an application for determination as to whether the prior approval of the planning authority is required" instead of "an application for planning consent". In addition, the reference to the "register of planning applications kept by the planning authority" should be omitted as there is no requirement to register applications for a determination. The application for determination should be accompanied by the appropriate neighbour notification certificates set out in Schedule 2 of the GDPO.

16. The 28 day determination period runs from the date when the application for a determination is received by the planning authority. If the authority gives notice that prior approval is required, they will then have the normal 2 month period form the date when the application for a determination was received to issue their decision, or whatever longer period they agree in writing with the applicant (see Article 14(2) of the GDPO).

17. The Secretary of State attaches great importance to the prompt and efficient handling of applications for a determination. The procedures adopted by authorities should be straightforward, simple and easily understood. Delegation to officers will help to achieve prompt and efficient handling, and should be extended as far as possible. Only in cases where the authority considers that a specific proposal is likely to have a significant impact on its surroundings would the Secretary of State consider it necessary for the authority to require the formal submission of details for approval. By no means will all the development proposals notified to the authority have such an impact.

18. An application for a determination should be accompanied by a written description of the proposed demolition, the appropriate neighbour notification certificates and any fee required to be paid. (The Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 1990 have been amended to enable the standard fee of £25 to be charged.) Planning authorities should prepare forms which developers can use to apply for a determination. This will help to ensure that sufficient details are submitted with the application to enable the authority to make a sound judgement. Authorities should acknowledge receipt of the application for a determination, giving the date of receipt. Where the authority decides that prior approval is not required, it would be helpful and courteous to inform the developer as soon as possible, to avoid any unnecessary delay or uncertainty. There will often be scope for informal negotiations on the details with the developer to facilitate early agreement that the demolition may proceed.

19. The proposed demolition may be carried out at any time within 5 years of the approval, or in cases where prior approval was not required, within 5 years of the date of the application. Outside that period a further application to the planning authority will be needed.

Redevelopment

20. Where the demolition of one or more buildings is required as part of a redevelopment for which planning permission is sought, the developer should include details of the demolition in the application for planning permission. These details should be considered by the planning authority along with other aspects of the redevelopment. Permission to demolish the building or buildings, according to such details as are agreed by the planning authority, should be included in any planning permission that may be given for the development. By virtue of Article 3(4) of the GPDO, a permitted development right does not permit the demolition of a building contrary to any condition that has been imposed by a planning permission granted, or deemed to be granted, under Part III of the 1972 Act.

21. Where it is not clear from the application whether the proposed development involves demolition, the planning authority should seek clarification from the developer before they determine the application. They may wish to impose a condition on a planning permission to prevent the demolition of any buildings on the land for which planning permission has been granted, where the demolition of such buildings is not required for the redevelopment of the site.

22. Conditions may be attached to the planning permission in order to ensure that, in carrying out the demolition, the developer has due regard to amenity and to any other relevant planning consideration. It would not be appropriate to impose conditions that may duplicate or conflict with any requirements that may be imposed on the demolition under the Building (Scotland) Act 1959. For this reason, close consultation between planning officers and building control officers is important.

23. When planning permission is granted for the development of a site containing several buildings, some of which are still occupied at the time of the granting of permission, it may be necessary to impose conditions relating to the commencement or phasing of the demolition. In this way premature demolition designed to intimidate owners of the occupied buildings can be controlled where there are sound land use planning reasons for so doing.

Enforcement

24. The unlawful demolition of a building may be subject to enforcement proceedings under Part V of the 1972 Act (as amended). Where an enforcement notice is issued in respect of a breach of planning control consisting of the demolition of a building, the notice may require the construction of a replacement building which is as similar as possible to the demolished building.

Compensation

25. If an Article 4 direction is used to require a planning application for the demolition of a building, and that application is not granted, or is granted subject to conditions other than those imposed by the GPDO, compensation may be payable in certain circumstances. The Government has taken the power to disapply the compensation provisions in the case of applications in respect of demolition, but it does not intend to exercise that power at present.

Transitional Arrangements

26. These new planning controls will not have effect in cases of demolition of a building or buildings on land in respect of which planning permission for redevelopment has been granted, or deemed to be granted, under Part III of the 1972 Act before 3 February 1995.