UK: Change to the Law Means Demolition Requires Planning Permission and EIA

Last Updated: 21 April 2011
Article by Paul Maile

Summary

This recent case concerned a demolition with no connection to renewable energy. However its findings have important ramifications for those involved in renewables planning and developers should be mindful of its consequences when demolition is required of any structure as part of a development. It is yet another example of the incompatibility of planning law with the EU's EIA Directive

Background

The challenge arose when the owners of the former Mitchell's Brewery site in Lancaster sought to demolish a number of historical buildings dating from the 18th Century. In a letter dated 2 December 2009, Lancaster City Council made the decision that prior approval of the details of demolition was not required as the building was excluded under the Town and Country Planning (Demolition - Description of Buildings) Direction 1995  ("the 1995 Direction") and therefore no planning permission was required.

"SAVE Britain's Heritage" ("SAVE") challenged that decision on the basis that the Demolition Direction was incompatible with the EU EIA Directive and that the Directive had not been correctly transposed into UK law. They also sought a declaration that demolition was capable of being a project which fell under Annex II of the Council Directive 85/227/EC ("the EIA Directive"). Their application was initially dismissed by the High Court1. However, SAVE appealed and, in a decision handed down on 25 March 2011, the Court of Appeal granted the declarations sought and quashed the Council's decision that the Brewery did not amount to development.

The Law

Paragraph 2(1) of the 1995 Direction provides that the demolition of certain types of buildings are not 'development' for the purposes of the Town and County Planning Act 1990. If a demolition does not amount to development, it will not require planning permission. If planning permission is not needed, then the UK EIA Regulations2 will not be engaged. As such, the 1995 Direction effectively excludes the majority of demolition from requirements of the EIA Directive.

Findings

In terms of whether demolition works could constitute a 'project' for the purposes of the EIA Directive, the Court based on the findings in the recent European case of "Ireland II"3 and found that demolition works are capable of falling within Article 1.2, under the category of 'other schemes'. Furthermore, if capable of being a 'scheme' it was also capable of being an urban development project within paragraph 10b of Annex 2. As such, demolition was capable of requiring EIA.

In addition, the Court granted the declaration that paragraph 2(1) (a) to (d) of the 1995 Direction are unlawful. As such, the demolition of buildings in conservation areas, scheduled monuments and buildings other than dwelling houses, are no longer exempt from requiring planning permission.

Implications

1. [2010] JPL 1429.
2. The Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 which implement the EIA Directive into domestic law.
3. Commission v Ireland (C-50/09) dated 3 March 2011.

The decision may have significant consequences for any renewables development which involve demolition.

In particular, we would now strongly advise :

  1. That any proposals which involve demolition expressly include demolition within the description of development.
     
  2. That demolition is included within the description of proposals subject to EIA screening and covered by the ES (where required)
     
  3. That for consented schemes awaiting implementation consideration be given as to whether the demolition works should be screened for EIA purposes or whether express planning permission for those works is now required.

For further information or advice, please contact:

Paul Maile
Associate
Tel: 0845 497 1474
paulmaile@eversheds.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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