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Demolition derby

18 July 11

An English Court of Appeal case is forcing a rethink of permissions and procedures in relation to authorisation of demolition

by Alastair McKie

This article analyses the implications of the landmark ruling of the Court of Appeal in Save Britain’s Heritage v Secretary of State for Communities and Local Government [2011] EWCA Civ 334. The court ruled that the demolition of buildings engages the requirement of the Environmental Impact Assessment (“EIA”) Directive 85/337/EEC: “the assessment of the effects of certain public and private projects on the environment”.

The case involved a decision by Lancaster City Council to authorise demolition of the historic Mitchell Brewery building without a screening opinion or prior approval under the English EIA Regulations, and a successful judicial review by Save Britain’s Heritage in that the EIA Directive was engaged since demolition per se can have serious impacts on the environment which must be assessed before planning permission is granted.

The court also ruled that the Secretary of State’s direction contained in paras 2(1)(a)-(d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 (“the English direction”, found in Circular 10/95, appendix A), was unlawful and should not be given effect.

The case will be highly persuasive in Scotland, where the EIA Directive applies through the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011. Further, the Scottish direction controlling demolition, the Town and Country Planning (Demolition which is not Development) (Scotland) Direction 2001 is expressed in almost identical terms to the English direction.

Alternative controls

While demolition is specifically included within the definition of “development” for which planning permission is required, through the English direction the Secretary of State is entitled to exempt, and has exempted, far-reaching categories of demolition from the planning system.

Such categories include demolition of any listed building, any building in a conservation area, any scheduled monument, and any building that is neither a dwelling nor adjoining a dwelling. Their exclusion is justified on the basis that other planning and legal controls cover such demolition. Importantly, for the purposes of this ruling, that legislation controlling the demolition of listed buildings, scheduled monuments etc does not incorporate the requirement for EIA before consent is given. The direction only applies to demolition and not partial demolition.

Permitted development rights

The arrangements granting deemed planning permission by way of permitted development rights (“PDO”) for demolition are also very similar in England and Scotland. These are relevant because for demolition outwith the scope of the English (or Scottish) direction, PDO grant deemed planning permission for demolition – unless the building has been rendered unsafe or uninhabitable by the action or inaction of any person, and it is practicable to secure safety or repair. There is also a prior notification procedure for demolition under PDO, but that does not apply to demolition in implementation of a planning permission for redevelopment, or required by statute or a planning agreement.

The manner in which the EIA Directive has been grafted on to the planning systems is that planning permission cannot be granted for certain categories of projects without first undertaking EIA. In this case, the Secretary of State unsuccessfully argued that EIA was not required for demolition alone, as demolition was not a “project”. The court confirmed that demolition works which left a site in a condition which protected the public and preserved public amenity were capable of being a “scheme” for the purposes of the definition in article 1.2 of the Directive.

Lord Justice Sullivan stated: “It is a curious, and thoroughly unsatisfactory, feature of the Direction that those demolitions which are most likely to have an effect on cultural heritage – the demolition of listed buildings, ancient monuments and buildings in a conservation area – are effectively excluded from the ambit of the Directive.”

Despite the ruling, PDO for demolition may still apply, but the prior notification procedure will be needed if demolition is not covered in the application for planning permission.

Where an EIA is required due to the significance of the impact on the environment, the PDO otherwise granting deemed permission for demolition will not apply and a formal application for planning permission will be needed, accompanied by an environmental statement.

Further implications

This case will have important implications for planning authorities, developers and all parties engaging in the planning system in regard to planning permissions involving the demolition of buildings.

Extant planning permissions will need to be reviewed to establish whether demolition is expressly included, and if not, to ensure that the prior notification procedure is taken into account in any project development timetables.

For fresh applications going forward it is important that demolition is specifically referred to in the planning application, and just as importantly in the actual grant of planning permission. Consideration needs also to be given as to whether screening for EIA should be undertaken.

It is likely that reform of the statutory arrangements will be required to take account of this judgment.

 

Alastair McKie, Head of Planning & Environment, Anderson Strathern LLP

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