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

At the screening stage of an environmental impact assessment, the relevant project is ordinarily the development for which consent is sought. A separate proposal may be treated as part of a wider development where, in reality, it is an integral component of an inevitably more substantial scheme and its existence promotes that scheme or carries its environmental effects in its wake.

A later development need not be included merely because it is contemplated, particularly where the proposal can proceed on its own merits, has an independent function, and does not depend on the later scheme. The Secretary of State may direct that sub-threshold development is EIA development and must take relevant cumulative-development criteria into account when exercising that power.

Save Britain's Heritage sought judicial review of the Secretary of State’s decision dated 6 January 2012 that the proposed demolition of the Orrell Chapel in the Klondyke area was not EIA development.

The claimant argued that the demolition formed part of the Council’s wider Phase 2 and 3 housing clearance and redevelopment programme and that the Secretary of State had unlawfully failed to consider the wider project and cumulative effects. It also challenged the adequacy of the reasons given for concluding that the demolition, considered with earlier clearance and redevelopment in Phase 1, was unlikely to have significant environmental effects.

The central questions were whether the relevant project was the Chapel demolition or the wider Phase 2 and 3 scheme, and whether cumulative effects of that wider scheme had to be considered.

1. The claim was dismissed. The Secretary of State was entitled to treat the proposed demolition of the Chapel as the relevant project rather than the future Phase 2 and 3 demolition and redevelopment.
2. The authorities on piecemeal development, including Commission v Spain, [2005] Env LR 20, Ecologistas En Accion-CODA v Ayuntamiento de Madrid, [2009] PTSR 458, and Karnten v Kartner Landesregierung, C-205/08, addressed projects which were integral and essential components of wider schemes. They did not require every independent proposal within a broad regeneration area to be treated as part of that wider scheme.
3. Relevant considerations included whether the proposal could proceed independently, whether it had a site-specific function, whether it was genuinely integrated with the wider scheme, and the degree of detail available concerning future proposals. The Chapel demolition could proceed irrespective of Phases 2 and 3 and had an independent justification arising from the building’s dangerous and derelict condition.
4. Under regulation 4(9) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the Secretary of State could direct that sub-threshold development was EIA development. The court inclined to the view that, when exercising that power, he was under an equivalent obligation to take into account relevant Schedule 3 selection criteria, including cumulation with other development.
5. The cumulative-effects principle requires a sufficient causal connection between the development being screened and the effects of the other development. There was no evidence that demolishing the Chapel promoted, enabled, or was necessary for the Phase 2 and 3 redevelopment, nor that the claimant had identified significant environmental effects arising from the Chapel demolition.
6. The reasons were adequate and intelligible. The Secretary of State considered the demolition’s scale, location, temporary disturbance, waste, energy use, asbestos, bats, and cumulative effects with earlier clearance and redevelopment. The screening direction was therefore lawful.