Case Law >> Saving Britain's heritage

Colleen Theron and Deirdre Lyons detail a new case that confirms the demolition of buildings do qualify as "projects" under the EIA Directive.

In R (on the application of Save Britain's Heritage) v Secretary of State for Communities and Local Government and another [2011] EWCA Civ 334, the Court of Appeal declared that:

• demolition of buildings was capable of constituting a “project” affecting the environment (within Annex II of the Environmental Impact Assessment Directive (85/337/EC) (EIA Directive); and
• subparagraphs (a) to (d) of the Town and Country Planning (Demolition – Description of Buildings) Direction (which exempts demolition from planning control) were unlawful.

The case involved the decision by Lancaster City Council to authorise the demolition, without prior approval, of the historic Mitchell’s Brewery. It was common ground between the parties that demolition of buildings would have significant effects on the environment.

The secretary of state contended that demolition does not fall within a “project” in the EIA Directive. This would have the effect that the proposed demolition would fall outside the planning control provisions. However, if the proposed demolition amounts to development, it falls within the planning application process and an EIA must be produced.

For the first time, the judgment brings all demolitions into the scope of the EIA Directive. Previously, the secretary of state had maintained that demolition fell outside the EIA Directive as it did not constitute a “project”. Now, any proposed demolition that is considered to have significant impact on the environment will be subject to the EIA process.

The ruling will have widespread implications for planning authorities, and a particular and immediate impact on proposed demolitions of large areas of terraced housing under the imminently defunct Housing Market Renewal (Pathfinder) Initiative. The judgment also means that demolition proposals of listed buildings and buildings in conservation areas may need EIAs.

The Court of Appeal’s decision also confirms that the government’s interpretation of the EIA Directive has, until now, been too narrow and was wrong to exclude demolition from its scope, given the serious environmental impacts that can result.

A further consequence is that where a proposed demolition is likely to have significant effects on the environment, permitted development rights will be withdrawn.

The developer will then have to apply for planning permission and an EIA will have to be carried out. Permission to demolish might then be refused.