Demolition in a conservation area and relevant demolition

Demolishing an unlisted building in a conservation area needs planning permission, and doing it without permission is a criminal offence rather than a matter the council can regularise later. Conservation area consent was abolished on 1 October 2013 by the Enterprise and Regulatory Reform Act 2013, and the control it provided was folded into the planning permission regime through the concept of relevant demolition and the offence in section 196D of the Town and Country Planning Act 1990.

Developers who learn the rule from a contractor tend to learn the wrong version of it. The offence is committed by the person carrying out the works as well as by whoever instructed them, and there is no four year rule to wait out.

Why demolition here is treated differently

Outside a conservation area, demolition of most buildings is permitted development under Part 11 of Schedule 2 to the General Permitted Development Order 2015, subject to a prior approval for the method of demolition and the restoration of the site.

Inside a conservation area, that right does not apply. The demolition is development requiring planning permission in its own right, because the council has to consider the effect of the loss on the character and appearance of the area before it happens, and a prior approval limited to method and restoration would not allow that.

Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 then applies to the decision: the council must pay special attention to the desirability of preserving or enhancing the character or appearance of the area. Where the building makes a positive contribution, its loss is harm to a designated heritage asset, and the national policy tests on harm and public benefit apply.

What relevant demolition means

Relevant demolition is the demolition of a building in a conservation area that is not a listed building or a scheduled monument. Where permission is needed and has not been granted, section 196D makes it an offence.

Three points about the offence.

It is triable either way. Summary conviction attracts a fine, and conviction on indictment can attract imprisonment as well as a fine. Courts take account of any financial benefit from the works.

There is a statutory defence, and it is narrow. Four things have to be shown:

• The works were urgently necessary in the interests of safety or health, or for the preservation of the building.
• It was not practicable to secure safety, health or preservation by works of repair, or by works for temporary support or shelter.
• The works carried out were the minimum immediately necessary.
• Written notice justifying the works in detail was given to the local planning authority as soon as reasonably practicable.

Miss any limb and the defence fails.

Unlike unauthorised operational development, an offence is not cured by the passage of time. Where fabric is gone, it is gone, and the council's remaining tools are prosecution and refusal of the replacement scheme.

Partial demolition and where the line falls

This is the question that generates most of the arguments, because the legislation controls demolition of a building rather than demolition of part of one.

The practical distinction is between demolition and alteration. Removing an internal wall, taking down a rear extension, or stripping a roof covering to replace it is alteration. Taking down the whole of a building, or so much of it that what remains is a facade or a fragment, is demolition.

Facade retention schemes sit in the difficult middle. A scheme that retains the front wall and removes everything behind it will generally be treated as demolition of the building by most authorities, and the safe course is to apply on that basis rather than to argue about it after the scaffolding goes up.

Three things reduce the risk:

1. Ask the council in writing, before any contract is let, whether it regards the works as relevant demolition. A written answer does not bind the authority, though it is evidence of reasonable conduct.
2. Where the position is unclear, include the demolition in the planning application description. There is no penalty for describing more than you need, and considerable penalty for describing less.
3. Where a building is to be substantially rebuilt, apply for permission for the replacement in full detail rather than in outline.

Where works to a listed building are involved instead, the regime and the offence are different again, and our note on unauthorised works to a listed building sets out that position.

Structures outside the control

Not everything in a conservation area is caught. A direction made by the Secretary of State excludes specified descriptions of building from demolition control, and it covers small structures by volume together with gates, fences, walls and other means of enclosure below stated heights, with the height threshold lower where the structure abuts a highway or waterway.

Read the current direction rather than relying on a remembered figure, because it has been remade. And note two traps. A boundary wall that forms part of the setting of the conservation area may still be protected by an Article 4 direction even where the demolition direction excludes it. And a structure attached to a listed building can be within the curtilage and therefore listed itself, which takes it out of this regime entirely.

Evidence that supports a demolition case

Councils rarely grant permission for demolition on its own. The case has to be built from four kinds of evidence.

Significance. A Heritage Statement assessing whether the building is a positive contributor, a neutral element or a detractor, measured against the conservation area appraisal where one exists. A building the appraisal identifies as a positive contributor is a much harder case.

Condition. A structural report from a chartered engineer setting out the defects, their cause and the repair options, with costs. A report that concludes the building is beyond economic repair should show the repair scheme it priced.

Viability of a repair-led alternative. Where the argument is that no viable use can be found, marketing evidence over a reasonable period at a realistic price, and an appraisal comparing repair and conversion with redevelopment.

Public benefit of the replacement. The heritage balance requires the benefits of the replacement scheme to be weighed against the harm, so the replacement has to be good enough to carry the argument.

One trap to avoid. National policy directs that harm resulting from deliberate neglect of a heritage asset should not be taken into account in favour of the applicant. A building allowed to deteriorate after purchase will not generate a condition argument, and councils have powers to require repair where neglect is the issue, as our note on repairs notices and urgent works explains.

The replacement scheme and the contract condition

Councils are entitled to be concerned about a cleared site sitting empty, and the standard answer is a condition preventing demolition until a contract for the redevelopment works has been entered into.

Typical wording requires that no demolition takes place until planning permission for the redevelopment has been granted and a contract for carrying out those works has been made, with evidence submitted to the authority. Where a scheme is being funded in stages, that condition has to be planned for, because it fixes the point at which the funding must be committed.

Expect two more conditions: a requirement to record the building before demolition, and a landscaping or hoarding requirement for the cleared site.

Recording before anything comes down

Where a building of interest is to be lost, the mitigation is preservation by record. A written and drawn record to the appropriate Historic England level, deposited with the local Historic Environment Record, is the normal requirement, and offering it in the application is better than waiting for a condition. The historic building recording page sets out what each level involves.

Do the recording before the scaffolding and the enabling works. A record produced after soft strip has begun is a record of a damaged building.

Other consents that run alongside

Planning permission is one of several requirements, and the others have their own lead times:

The section 80 notice catches programmes out most often, because six weeks runs from service and cannot be shortened by agreement.

This is general guidance, not legal advice. Whether particular works amount to relevant demolition turns on the facts, and the consequences of getting it wrong are criminal, so take advice from a planning solicitor or a qualified professional and confirm the position with your local planning authority first.

Enter your postcode on PlanScope to see which heritage documents a demolition and replacement scheme is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.