Environmental protection – Environmental Impact Assessment (EIA) Directive – Demolition of building – Demolition of certain classes of building within para 2(1) of Town and Country Planning (Demolition – Description of Buildings) Direction 1995 not treated as “development” such that no planning permission required – Whether contrary to requirements of directive – Whether demolition not forming part of wider development amounting to “project” within meaning of directive – Appeal allowed
In October 2009, the interested party gave notice to the local authority, under section 80 of the Building Act 1984, of its intention to demolish a brewery on the ground that it was redundant and in such a condition that its restoration was financially unviable. The local authority served a counternotice under section 81, imposing conditions relating to such matters as shoring up adjacent buildings and removing waste.
The claimant obtained an injunction without notice, preventing the demolition from going ahead pending its application for judicial review. It contended that paras 2(1)(a)-(d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995, under which the demolition of certain classes of building was not to be regarded as “development” requiring planning permission, was unlawful as being contrary to the requirements of the Environmental Impact Assessment Directive 85/337/EEC. The appellant argued that the directive required an environmental impact assessment (EIA) to be carried out prior to the demolition of a building, such that planning permission should be required before the demolition could proceed. The first limb of article 1(2) defined “project” as the execution of construction works or of other installations or schemes; the second limb included other interventions in the natural surroundings and landscapes, including the extraction of mineral resources.
The central issue was whether demolition that did not form part of a wider development constituted a “project” within article 1(2) of the directive and, if so, whether it fell within any of the categories of project for which an EIA assessment was required.
The High Court concluded that demolition, other than that forming part of what would otherwise be a project within the meaning of the directive did not come within the scope of that directive: [2010] EWHC 979 (Admin); [2010] JPL 1429.
The appellant appealed. It argued that, following the judgment of the European Court of Justice in Commission of the European Communities v Ireland Case C-50/09 (delivered after the judgment in the instant case) demolition works could constitute a project for the purposes of the directive and, by effectively excluding them from its scope, the 1995 Direction was unlawful.
Held: The appeal was allowed.
The demolition of buildings was capable of constituting a project within article 1(2) of the directive. Paragraphs 2(1)(a)-(d) of the 1995 Direction were unlawful and should not be given effect.
It was unnecessary to give article 1(2) a broad and purposive construction in order to conclude that demolition works that left a site in a condition that protected the public and preserved public amenity could constitute a “scheme” for the purposes of that article.
The directive had to be interpreted as a whole. It was an unsatisfactory feature of the 1995 Direction that demolitions that were most likely to have an effect on the cultural heritage, namely the demolition of listed buildings, ancient monuments and buildings in a conservation area, were effectively excluded from the ambit of the directive.
The respondent’s submission that the decision of the in Ireland did not apply to demolition in urban areas would produce an unsatisfactory result. Demolition in rural areas would be capable of falling within the directive as an “intervention in the natural surroundings and landscape”, whereas demolition in urban areas would not because it would not fall within the first limb of article 1(2) or constitute an intervention in the natural surroundings and landscape.
Although it was unnecessary to decide the issue, the court did not accept the premise underlying the respondent’s submission that “landscape” in the second limb of article 1(2) had to be a reference to a rural landscape. For the purposes of the directive, “landscape” meant something other than “natural surroundings”, there was no reason why it should be confined to rural landscapes.
Furthermore, there was no reason why demolition could not fall within article 1(2) simply because it was not included in the list of projects in annexes I and II to the directive. If demolition were capable of being a “scheme” for the purposes of article 1(2), it could also be an “urban development project” within para 10(b) of annex II, even though the project comprised only demolition and restoration of the site in accordance with a notice under section 81(1) of the 1984 Act.
Richard Harwood and Andrew Deakin (instructed by Richard Buxton Solicitors Environmental & Public Law, of Cambridge) appeared for the appellant; James Maurici (instructed by The Treasury Solicitor) appeared for the respondent.
Eileen O’Grady, barrister
