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 EIA Directive – Whether demolition not forming part of wider development amounting to “project” within meaning of directive – Claim dismissed
In October 2009, the interested party gave notice to the second defendants, 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 second defendants 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 claim for judicial review against the defendants. By that claim, 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 EIA Directive). The claimant 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 central issue was whether demolition that did not form part of a wider development constituted a “project” within article 1(2) of the EIA Directive and, if so, whether it fell within any of the categories of project for which an EIA assessment was required.
The claimant submitted that the demolition of the brewery fell within Annex II to the directive as: (i) a brewing and malting project within para 7(d); (ii) an infrastructure project consisting of an urban development project, within para 10(b); or (iii) a change or extension to any of the former that might have significant effects on the environment, within para 13.
Held: The claim was dismissed.
The effect of the EIA Directive on the 1995 Direction was academic on the facts of the instant case because, even if demolition were to constitute a project within the meaning of the directive, it did not fall within any of the categories of project for which an EIA was required.
The better view was that the demolition of a building, unless forming part of a wider development, did not come within the scope of the EIA directive at all. The definition of “project” in Article 1(2) did not expressly mention demolition. Demolition did not, as a matter of language, amount to “construction works” within the wording of that definition, nor were they “installations” or “schemes”: R (on the application of Edwards) v Environment Agency (No 2) [2008] UKHL 22; [2009] 1 All ER 57 applied.
Even assuming, contrary to the above, that the word “scheme” could include demolition so as to make demolition a project within article 1(2), the projects to which the EIA Directive applied were further defined in article 4 by reference to the categories listed in Annex I or II. The projects defined in the annexes could not be described as extending to demolition alone. The only arguable exception was para 2 of Annex I, which referred in terms to the “dismantling or decommissioning” of power stations; this suggested that, in the absence of such wording, demolition would not fall within the scope of the directive.
As to the Annex 2 projects that the claimant relied on, para 7(d) had to be read with Article 1(2), so that it referred to the execution of construction works or of other installations or schemes concerning brewing and malting. Neither as a simple matter of language, nor on the broad, purposive interpretative approach mandated by the European courts of justice, could demolition of an empty and redundant building that had formerly been used as a brewery come within that definition: Aannamaersbedrijf PK Kraaijveld BV v Gedeputeerde Staten van Zuid-Holland C-72/95 [1997] All ER (EC) 134 considered. Paragraph 10(b) did not apply because it was concerned exclusively with construction: “development”. Demolition without reconstruction was not “development”, which, on its natural meaning, meant the construction of new buildings or the alteration or refurbishment of existing buildings. An urban development project within para 10(b) involved the building on land of new buildings or the extensive modification or refurbishment of existing buildings. It could not apply to the demolition of an existing building alone, since that involved destruction, not construction or development. Since demolition was not a project within any of the other categories within Annex I or Annex II, it could not be a “change” to such a project within para 13 of Annex 2. In any event, the word “change” could, as a matter of language, apply to the demolition, in other words the destruction, of an existing building.
Finally, even if the EIA Directive, and, accordingly, the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 that implemented them, were capable of applying to demolition, they would not apply to the demolition of the brewery because it fell below the applicable size thresholds.
Richard Harwood and Andrew Deakin (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the claimant; James Maurici (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants and the interested party did not appear and were not represented.
Sally Dobson, barrister
