Significant court decision on permitted development and EIA

Paul Mobbs mobbsey at
Mon Apr 4 09:44:13 BST 2011

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Change to demolition direction following Court of Appeal case

Roger Milne, Planning Portal, 31st March 2011

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Since permitted development rights are withdrawn where EIA is required that 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.

- -- 


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