Heritage charity hails Court of Appeal ruling on demolitions

Date:

28/03/2011

Author:

Philip Hoult

Source:

Local Government Lawyer

Matter:

SAVE - Mitchell's Brewery

File:

Proposed demolitions that are considered to have significant effects on the environment will now be subject to the Environmental Impact Assessment (EIA) process as a result of a key Court of Appeal judgment last week.

The case centred on a decision by Lancaster City Council to authorise the demolition of the Mitchell's Brewery building in the city's Canal Corridor. The Brewery has now been listed, but SAVE Britain's Heritage carried on to seek a landmark ruling.

At issue was whether demolitions should be brought into the scope of the EIA Directive for the first time or whether - as maintained by the Secretary of State for Communities and Local Government - they do not constitute "projects" and therefore fall outside the Directive.

Under Article 1.2 of the Directive, a project means:

  • "the execution of construction works or of other installations or schemes,
  • other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources...."

SAVE lost at the High Court but this ruling has now been overturned.
Giving the judgment in the Court of Appeal, Lord Justice Sullivan said: "Schemes other than the execution of construction works are plainly within the first limb (of Article 1.2 of the Directive), and there is no reason why demolition works should be excluded from those schemes.

"Moreover, while demolition is the antithesis of construction, the act of demolition, when coupled with the restoration of a site, is capable of creating something that is new: e.g. an open and hard surfaced or grassed area where there was once a building."

The judge added: "In my view, it is unnecessary to give Article 1.2 a broad and purposive construction in order to reach the conclusion that, in ordinary language, demolition works which leave a site on completion in a condition which protects the public and preserves public amenity are capable of being a ‘scheme' for the purposes of Article 1.2.

"If there was any doubt that as to whether they were capable of being a scheme, that doubt would be resolved by giving a purposive interpretation to ‘other....schemes'."

SAVE predicted that the ruling would have "widespread implications for planning authorities, and.... a particular and immediate impact on proposed demolitions of large areas of terraced housing under the soon-to-be-defunct Housing Market Renewal (Pathfinder) Initiative".

The charity, which is campaigning in a number of Pathfinder cases, claimed that as a result of the ruling Liverpool City Council would have to subject the scheme for demolition of the 'Welsh Streets' area of Toxteth in Liverpool to the environmental impact assessment process.

SAVE also said the Court of Appeal's decision would mean that proposals for demolition of listed buildings and buildings in conservation areas may need Environmental Impact Assessment.

William Palin, SAVE's Secretary, said: "This is a crucial judgment which will have far reaching effects on the way that local councils deal with demolitions of all types of building.

"It confirms that the government's interpretation of this important European Directive has hitherto been too narrow and has wrongly excluded demolition from its scope."

Palin said the charity had been arguing for years that it was "absurd" that a developer could escape the Directive by separating demolition from development when it was clear that demolition could have serious impacts on the environment.

SAVE was advised by Richard Buxton Solicitors and 39 Essex Street.