Demolition derby

It was only recently that the courts resolved whether demolition works could amount to a 'project' and so be subject to the Environmental Impact Assessment process. Colin Thomann looks at the decision.

One of the often overlooked objectives of Council Directive 85/337 on the assessment of the effects of certain public and private projects on the environment is the protection of the European Union’s “cultural heritage”. There was for many years a disconnection between the inclusion of this objective within Article 3 and the exemption provisions of the Town and Country Planning (Demolition/Description of Buildings) Direction 1995. Until March 2011, these provided that stand-alone demolition projects (other than demolitions of and adjoining dwelling houses) were effectively beyond the reach of the environmental impact assessment (“EIA”) regime.

It was observed by the Court of Appeal to be a “curious and thoroughly unsatisfactory feature of the Direction” that, by paragraph 2, those demolition works most likely to have an effect upon the cultural heritage – listed buildings, buildings situated in a conservation area and scheduled monuments – were not deemed “development of land”. There was no need for planning consent, the gateway requirement bringing into play the EIA assessment obligations in domestic law. A further anomaly was that the partial demolition of buildings was generally regarded as development of land (section 55 of the Town and Country Planning Act1990).

Demolition projects of entire buildings were not, of course, unregulated. The Planning (Listed Buildings and Conservation Areas) Act 1990 imposes a requirement for demolition consents which encompass both listed buildings and demolitions in conservation areas. The intended demolition of even non listed buildings further requires the giving of prior notice to the local authority under section 80 of the Buildings Act 1984, whereupon the works may be subjected to conditions. It is nonetheless remarkable that the issue of whether works of demolition alone could amount to a “project” for the purpose of the Directive remained unresolved until recently. [1]

The requirement for an EIA makes a material difference in practice, particularly where a building or area of cultural value has escaped designation to date. The case which finally brought the issue to a head – R (Save Britain´s Heritage) v Secretary of State for Communities and Local Government, Lancaster City Council and Mitchells of Lancaster Brewers Limited – involved a proposal to redevelop the Lancaster Canal Corridor. This project was accompanied by an Environmental Statement under the Town and Country Planning (Environmental Impact Assessment (England and Wales) Regulations 1999 (“the Regulations”). No application was, however, made in respect of the demolition of Mitchell’s Brewery, an 18th century malthouse at the time neither listed nor within a conservation area. The Council determined that no EIA was required.

The Claimant mounted the broad argument that the Demolition Direction’s exemptions infringed Article 1(2) of the Directive. At first instance, the argument was unsuccessful. His Honour Judge Pelling QC noted the absence of any suggestion within the jurisprudence of the Court of Justice of the European Union (“CJEU”)  that “demolition only” constituted a “project”. By Article 1 of the Directive, the definition of “project” included (1) the execution of construction works or of other installations or scheme and (2) other interventions in the natural surroundings and landscape. Neither, it was suggested, was apt to describe demolition.

By the time the Court of Appeal handed down its judgment, however, the CJEU itself had finally grappled with the classification of demolition works, albeit in a rural setting. In Case C-50/09 Commission v Ireland, it determined that Irish transposing legislation infringed the Directive by effectively excluding stand alone demolition works. The consequences could be stark. By way of illustration, the destruction of the historic Lismullin Henge site, for the purposes of facilitating a motorway project to proceed did not require a prior EIA to be undertaken. The CJEU decided that such works could be described as “other interventions in the natural surroundings and landscape”, and therefore qualified as projects within the definition of Article 1(2).

This, the Claimant argued in Save Britain’s Heritage, effectively disposed of the argument in the context of an urban setting, likewise. The Secretary of State advanced a series of arguments to resist this conclusion. The most ambitious was his contention that the CJEU had simply got things wrong. He did not go as far as suggesting that the European Court’s rulings could be ignored. Rather, it was suggested that a further reference sould be made, giving the CJEU an opportunity to reconsider. In the alternative, it was argued that the example discussed by the CJEU, the Irish M3 motorway construction, also involved a landtake for the road, and for this reason constituted an “intervention in the natural surroundings.”  It had been unnecessary for the CJEU to proceed to rule upon demolition more generally. The judgment should not be read, it was argued, as precluding an interpretation of Article 1(2)’s first indent “execution of construction works or of installations and schemes” which assumed the creation of someting new.

The Decision

Sullivan LJ’s reasoning was instructive. He confirmed the Directive’s structural orthodoxy. Not every proposal which was likely to have a significant effect upon the environment was for this reason alone to be classed as falling within the EIA Directive. If blanket coverage had been intended, the sectoral categories provided for in Annexes I and II of the EIA Directive would be otiose. The appellate judge considered it an unjustifiable anomaly, however, to construe reference to the “natural surroundings and landscape” in Article 1(2) as referring to rural landscapes only. The Council’s decision that no EIA was required was quashed.

Wider Implications

In a letter dated 31 March 2011, the Government’s, Chief Planner acknowledged that the exemptions in paragraphs 2(1)(a) to (d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 – demolition of listed buildings, buildings in conservation areas, scheduled monuments, and other buildings not dwelling houses or adjoining dwelling houses – did not survive the Court of Appeal’s judgment.

Whilst the Government did not expressly concede defeat in respect of the remaining categories, comprising (e) any building the cubic content of which, measured externally, does not exceed 50 cubic metres and (f) the whole or part of any gate, fence, wall or other means of enclosure, developers would be well advised to factor in the risk that a screening opinion as to the likelihood of significant environmental effects, and subsequently the obaining of planning permission, may be required.

A complicating factor in the interim is the duplication of consent regimes. Upon the demise of subparagraphs  (a) to (d) of the Demolition Direction, developers are left to fall back upon the permitted development rights provided for under Part 31 of Schedule 2 of the The Town and Country Planning (General Permitted Development) Order 1995. Even where the local authority has considered that what is proposed falls outside the scope of EIA development as defined in Schedules 1 or 2 of the domestic implementing Regulations, and therefore does not require a screening opinion, the Secretary of State may require this through a regulation 4 direction.

Is there any point, in those circumstances, in retaining a separate conservation area consent regime? No, suggested the Penfold Review of non-planning consents. It has been argued elsewhere that a principal benefit of the conservation area consent regime remains that it criminalises the demolition of buildings within a conservation area (see Deakin, The impact of R (SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government 39 Essex Street's Enviornmental and Planning Law Newsletter). It is, however, far from clear that this benefit can only be bought at the price of imposing a wasteful second tier approval process. Nor is it at all obvious why the regulatory framework should now encompass a two tier approval system for listed buildings. A return to the drawing board, catering expressly for planning consents granted in respect of all significant demolition works would do much to simplify the regulatory framework.

A further trend is apparent in the judgment in Save Britain’s Heritage should be noted. It represents a slight but significant further domestic extension of the purposive approach to interpretation of Article 1(2). Sullivan LJ’s suggested that this definition section should be construed to catch, wherever possible, proposals likely to have significant environmental effects. Save Britain’s Heritage a further case which declined to follow the more restrictive obiter dicta of the House of Lords in R (Edwards) v Environment Agency [2008]. There, some of their Lordships appeared to require the construction of “something new”. It will be remembered that a similar attempt to confine the scope of Article 1(2) in reliance upon these dicta was unsuccessful in the context of a change in the use of vessels employed on the Isle of Wight ferry route (see R (Akester) (On Behalf of the Lymington River Association) v Department for Environment, Food and Rural Affairs [2010] EWHC 232 (Admin)). The judgment of Sullivan J (and of the CJEU in Commission v Ireland) is further notable for the short shrift given to arguments seeking to advance a restrictive reading of the sectoral categories in Annexes 1 and 2. As the judge confirmed, the wording of these categories was not intended as a precise descriptor.

More recently, Lloyd Jones J held that this inclusive approach to construing the ambit of the EIA regime does not extend to the distinct question of whether a project is likely to have significant environmental effect on the environment (see the recent judgment in R (Loader) v Secretary of State for Communities and Local Government [2011] EWHC 2010 at para 32). It is hard to resist the conclusion, however, that comprehensive coverage of the EIA regime in respect of those projects which have been adjudged likely to have significant effects upon the environment has been brought a further step closer.

Colin Thomann is a barrister at 39 Essex Street.

[1] In R (Save Britain's Heritage) v Gateshead MBC [2010] EWHC 2919, the court was able to avoid ruling on the issue in view of a change of stance by the council. It considered, following the receipt of further information, that no significant effect upon the environment was likely during phase one of an extended demolition project.