In a judgment delivered on 25 March the Court of Appeal decided that demolition constitutes a project under the terms of the EU Environmental Impact Assessment Directive after allowing SAVE Britain's Heritage's judicial review against the proposed demolition of the former Mitchell's Brewery site in Lancaster.
The Government had argued that the Town and Country Planning (Demolition - Description of Buildings) Direction 1995 paragraph 2 (1) provided that demolition of listed buildings (and buildings which were scheduled ancient monuments or in a Conservation Area) were not development and that as a result fell outside the EIA Directive.
In an earlier case the courts had agreed with the Secretary of State’s stance that demolition of dwelling houses and buildings adjoining dwelling houses which have permitted development rights by Part 31, Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995 did not (and could not) require EIA.
Since permitted development rights are withdrawn where EIA is required that view was of considerable practical importance in housing clearance and Pathfinder cases.
Now the Court of Appeal has ruled that demolition could be a project under Article 1.2 of the EIA Directive (either as a 'scheme' under the first limb of the Article or as 'other interventions in the natural surroundings and landscape' under the second limb).
A Department for Communities and Local Government spokesperson said: "This is a legal challenge that was initiated under the last administration, and stems from the implications of an EU Directive. We will now consider the judgement carefully and consider the next steps."
The Court of Appeal stated “It is a curious, and thoroughly unsatisfactory, feature of the Direction that those demolitions which are most likely to have an effect on the cultural heritage - the demolition of listed buildings, ancient monuments and buildings in a conservation area - are effectively excluded from the ambit of the Directive.”
The Court granted the declaration sought by SAVE that paragraph 2 (1) (a) to (d) of the Demolition Direction are unlawful. The Court did not consider whether the exclusions in subparagraphs (e) and (f) are lawful.
The Secretary of State's applications for permission to appeal to the Supreme Court and for a stay of the declarations and quashing order were refused.
The judgment may also mean that proposals for demolition of listed buildings and buildings in conservation areas may need EIA.
The Government's chief planner, Steve Quartermain, has written to local authorities drawing their attention to the Court of Appeal Judgement.
31 March 2011