PP 2010/80

In R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2010] EWHC 979 (Admin); [2010] NPC 57, the claimant sought to rely on a novel argument in support of its High Court application for a declaration that would have prevented the demolition of an 18th century brewery without planning permission. Section 55 of the Town and Country Planning Act 1990 treats development for which planning permission is required as including building operations and defines building operations to include demolition. It excludes from the scope of development for which planning permission is required any demolition of any description that is specified in a direction issued by the secretary of state. The current generic direction is the Town and Country Planning (Demolition – Description of Buildings) Direction 1995. In the instant case, the brewery fell within the 1995 Direction and its owners simply gave notice to the local authority, under section 80 of the Building Act 1984, of their intention to demolish it. The claimant argued that the 1995 Direction was unlawful in that its effect contravened the Environmental Impact Assessment Directive (85/337/EEC). That argument depended upon a submission that the Directive required an environmental impact assessment (EIA) to be carried out prior to the demolition of a building. If successful, planning permission would therefore be required to demolish the brewery. The court concluded that, on the facts of the case, the argument concerning the effects of the Directive on the 1995 Direction was academic. If the Directive required an EIA prior to demolition, demolition of the brewery did not fall within Schedule 1 to the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. Equally, if it fell within one of the categories of development set out in Schedule 2 it did not meet the relevant threshold or criteria. (The Regulations transpose the Directive into domestic law.) Accordingly, the application was dismissed. Nevertheless, the judge set out his views on the scope of the Directive and, in particular, whether demolition could constitute a “project” within article 1(2) of the Directive. Having considered the text of the Directive in detail, together with a number of English authorities and the jurisprudence of the Court of Justice, he concluded that demolition, other than demolition that formed part of what would otherwise be a project within the meaning of the Directive, did not fall within its scope. John Martin is a freelance writer