Save Britain's Heritage, R (on the application of) v Secretary of State for Communities & Local Government & Ors

Demolition of a building, without associated construction or another wider development project, does not fall within the concept of a project under the Environmental Impact Assessment Directive. The Directive’s broad purpose does not remove the need to identify a project within Article 1(2) and the projects specified in the Annexes. Demolition alone is not construction, a change, or a modification of the relevant projects. In any event, an environmental impact assessment was not required where the proposed works created no new floorspace, covered less than the applicable area threshold, and did not constitute a qualifying change or extension under the EIA Regulations.

Save Britain's Heritage sought judicial review of the Secretary of State’s position that demolition of a redundant brewery in Lancaster did not require planning permission or an environmental impact assessment. The challenge targeted paragraphs 2(1)(a)–(d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995. The claimant argued that the Direction was inconsistent with the Environmental Impact Assessment Directive because demolition itself required prior environmental assessment. The Secretary of State contended that the Directive did not apply to demolition works and that, in any event, the issue was academic because the applicable regulatory thresholds were not met. The central questions were whether demolition alone was a project under the Directive and whether the proposed demolition required assessment under the EIA Regulations.

1. Claim dismissed. The court held that the challenge was academic on the facts and dismissed the application on that basis. It also concluded, as an alternative, that demolition alone fell outside the scope of the Environmental Impact Assessment Directive.
2. The Directive must be construed purposively and broadly, but its application remains confined to projects falling within Article 1(2) and the projects identified in Annex I or Annex II. The relevant provisions must be read together, rather than by isolating words such as “schemes”.
3. Demolition is not construction works. Demolition of an empty and redundant former brewery is not “brewing and malting”, an urban development project, or a change or extension of a qualifying project. Paragraph 13 of Annex II concerns alteration or refurbishment, not destruction by demolition. The prohibition on splitting projects was not engaged because the demolition was not part of another development scheme.
4. The court treated the majority reasoning in R (Edwards) v Environment Agency as highly persuasive. Although the observations there were obiter, they supported the conclusion that the first limb of “project” contemplated the creation of something new. The court also rejected reliance on the other authorities as materially inapplicable or unhelpful in their different statutory or factual contexts.
5. Even if the Directive and Regulations could apply to demolition, no assessment was required. The proposed demolition created no new floorspace, covered less than 0.5 hectare, and did not satisfy the applicable criterion for a change or extension. The Secretary of State’s discretionary power under regulation 4(8) had not been invoked, and there was no obligation to exercise it.
6. A reference under Article 267 of the EC Treaty and permission to appeal were refused. The interim injunction was continued pending the expiry of the period for seeking permission to appeal or further order. The claimant was ordered to pay the First Defendant’s costs, subject to the £10,000 cap.

First-instance judicial review decision. The judgment records that permission to appeal was refused and that a reference under Article 267 of the EC Treaty was refused.