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

Demolition works are capable of constituting a project under Council Directive 85/337/EC. The first limb of article 1.2 includes the execution of schemes other than construction works. It may therefore include demolition followed by clearance and restoration of the site.

The Annexes identify sectoral project categories rather than every type of work. Demolition may consequently be an urban development project under Annex II. A domestic planning direction which removes such demolition from planning control, and thereby prevents environmental impact assessment, is unlawful to that extent.

Save Britain’s Heritage challenged the lawfulness of a direction which treated specified categories of demolition as not involving development under the planning legislation. That treatment meant that no planning application, screening process or environmental statement was required.

His Honour Judge Pelling QC dismissed the judicial-review claim. He held that demolition was outside the Environmental Impact Assessment Directive unless it formed part of another project falling within Annex I or Annex II.

The appeal concerned the proposed demolition of a brewery. While the appeal was pending, the CJEU decided Commission v Ireland, C-50/09. The central issue was whether demolition itself could be a Directive project and, if so, an Annex II project.

1. Appeal allowed. The court granted declarations that demolition of buildings is capable of being a project within Annex II to Council Directive 85/337/EC, and that paragraph 2(1)(a)–(d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 is unlawful and should not be given effect. It also quashed the Council’s decision that no prior notice was required.

2. Article 1.2 must be read purposively. Its first limb is not confined to construction works. The expression “other schemes” naturally includes demolition works where the works, including clearance and restoration, leave the site in a condition which protects the public and preserves public amenity. The conclusion is reinforced by the Directive’s concern with environmental effects, including cultural heritage.

3. The court applied the CJEU’s conclusion in Commission v Ireland, C-50/09, that demolition may itself be a project. It rejected the submission that this conclusion was confined to the second limb of article 1.2 or to rural demolition. The court also explained that observations in R (on the Application of Edwards) v Environmental Agency, [2008] UKHL 22, concerning the creation of something new were obiter and concerned a change of fuel at an existing plant. They did not provide a comprehensive construction of the first limb.

4. Under article 4, a project must fall within an Annex I or Annex II category before environmental impact assessment is required. The Annexes use sectoral categories and do not exhaustively describe the works involved. Demolition and restoration may therefore constitute an urban development project under paragraph 10(b) of Annex II, even without redevelopment. The Direction’s exclusion of relevant demolition from the definition of development unlawfully prevented the Directive from operating.

• Court of Appeal (Civil Division): Allowed the appeal in [2011] EWCA Civ 334, granted the requested declarations and quashed the Council’s decision.
• High Court: His Honour Judge Pelling QC dismissed Save Britain’s Heritage’s judicial-review claim on 7 May 2010.