Demolition - Is Required (Or Not - That Is The Question)

The definition of development is given in Section 26 of the Town & Country Planning (Scotland) Act 1997 (as amended). Sub-Section 4 makes clear that "building operations" (which do constitute development) include "demolition of buildings".

However that apparently straightforward position is the subject of two other relevant sets of provisions which (until recently) have in effect meant that planning permission was not in fact generally required for demolition.

Class 70 of the General Permitted Development (Scotland) Order (SI1992 223) deals with demolition and exempts from the need to obtain planning permission demolition of a complete building subject to certain exemptions. Unless however the demolition is urgent or necessary on the grounds of safety, there is a requirement to apply to the planning authority to ascertain whether prior approval from the planning authority of the means of demolition and any consequent restoration will require to be obtained. There may also then be a requirement for neighbour notification. If the planning authority does indicate that their prior approval is necessary then no demolition works can take place until that approval (in relation to the means of demolition and the restoration of the site thereafter) has been given.

Separately in 2001 the Scottish Government issued a Circular (Circular 1/2001) with the snappy title of "The Town & Country Planning (Demolition which is not Development) (Scotland) Direction". This Circular was made in terms of Section 26 of the Act and in effect provided that the demolition of certain types of building would not constitute development (notwithstanding the other provisions of Section 26). In effect this exempted from the need to obtain planning permission the demolition of certain buildings which were subject to other controls (such as listed buildings) and some other buildings (excluding dwellinghouses and buildings in excess of a specified size). The Circular (like the Permitted Development Order) only applied to demolition of a whole building and not partial demolition.

The consequence of this Circular read alongside the Permitted Development Order was that demolition of most complete buildings would not require planning permission though it might be necessary to go through a prior notification/approval procedure identified in the Permitted Development Order.

However in 2009 the European Court of Justice ruled that Ireland had not properly transposed into their...

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