PP 2011/59

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 such development any demolition of any description 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. One of the categories of excluded demolition is the demolition of any building other than a dwelling-house, or a building adjoining a dwelling-house: see para 2(1)(d) of the 1995 Direction. This category of demolition would therefore not require an environmental impact assessment (EIA) because it does not require a planning application. In R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 334; [2011] PLSCS 87, the Court of Appeal had to decide whether it was appropriate to make declarations to the effect that the demolition of buildings can constitute a project falling within article 1(2) of the Council Directive 85/337/EEC (the EIA Directive) and that para 2(1)(d) of the 1995 Direction – together with certain other related paragraphs – was therefore unlawful. Save Britain’s Heritage had put forward these arguments in an attempt to prevent the demolition without planning permission of a freestanding 18th century brewery. The Court of Appeal made the declarations sought, citing in particular the decision of the Court of Justice in Commission v Ireland C-50/09. Article 1(2) of the EIA Directive, in defining “project” refers to “the execution of construction works or of other installations or schemes”. Sullivan LJ held that although demolition works are the antithesis of construction works, this wording was not confined to “construction works”. Furthermore, it was immaterial that demolition was not specifically included in the list of projects in annexes I and II of the EIA Directive. He also held that para 2(1)(d) of the 1995 Direction – and its related paragraphs – were unlawful and should not be given effect. Communities and Local Government must contemplate amending the 1995 Direction, and developers will have to accept that more categories of demolition works may require an EIA. John Martin is a freelance writer