Demolition: Hold off on that wrecking ball

The heritage campaign group SAVE Britain’s Heritage has won a landmark legal case in the Court of Appeal against the communities secretary Eric Pickles, regarding controls over demolition. The case concerned a decision by Lancaster council to permit the demolition of the former Mitchell’s brewery building in Lancaster with the result that demolition is a project for the purposes of the Environmental Impact Assessment Directive.

This decision will have major implications for planning authorities as well as an immediate practical impact on current Pathfinder housing renewal and similar housing clearance proposals involving the demolition of large areas of terraced housing. It also means that most of the Town and Country Planning (Demolition - Description of Buildings) Direction 1995 is unlawful. Under paragraph 2(1) of the direction the demolition of the following buildings do not constitute “development” and therefore do not require planning permission:

• Any listed building
• Buildings in a conservation area
• Any building which is a scheduled monument
• Any building other than a dwelling house or a building adjoining a dwelling house
• Any building of 50m2 or less (measured externally)
• The whole or any part of any gate, fence, wall or other enclosure.

Consequently, the secretary of state has always been of the view that demolition within these categories cannot be subject to Environmental Impact Assessment. Even if it did, the secretary of state claimed throughout the proceedings, that demolition is not within the scope of the directive unless it is carried out as part of a project that does fall within annex I or II of the directive. The 1995 Demolition Direction, which excludes most demolition from the definition of development in the Planning Act 1990, worked on the basis that demolition was not a project - for the purposes of the directive - and if the proposed demolition does not amount to development, then there is no need to apply for planning permission. In the UK the implementation of the Environmental Impact Assessment Directive has been achieved by grafting its requirements onto the planning application process. Thus, if most demolition did not require any planning application to be made, the directive did not bite.

It should be noted that although there are other controls over the demolition of listed buildings and ancient monuments and the demolition of buildings in a conservation area, those controls do not engage the directive. Additionally, both parties agreed that demolition is capable of having significant effects on the environment.

This decision will have major implications for planning authorities

The Court of Appeal rejected the secretary of state’s long-held view that lay behind the demolition direction. The directive required a purposive interpretation. It held that demolition could be a project under article 1.2 of the 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. As Lord Justice Sullivan held: “If it is accepted that works are capable of having significant effects on the environment, the definition of “project” in article 1.2 should, if possible, be construed so as to include, rather than exclude, such works.” He also rejected the secretary of state’s argument that “landscape” was confined to a rural landscape.

Sullivan went on to explain that in the case of the Commission vs Ireland C-50/09, the EU Court of Justice had held that the lists of projects in annex I and II of the directive refer to “sectoral categories of projects” without describing the precise nature of the works provided for. Thus, for example, “urban development projects” often involve the demolition of existing structures. He considered that “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 gambit of the directive.”

This is a robust judgment and it is hard to fault the court’s logic.The Court of Appeal refused permission to appeal on the basis that a stay would cause more confusion.

Martin Edwards is a barrister at Thirty Nine Essex Street chambers