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Court of Appeal rule exclusion of demolition from definition of development a breach of the EIA Directive

The Court of Appeal (The Chancellor, Toulson LJ and Sullivan LJ) in R (Save) v Secretary of State for Communities & Local Government today ruled that: (i)  the demolition of buildings and other structures is capable of constituting a project falling within Annex II of the EIA Directive; and (ii) as a result paragraph 2(1)(a)-(d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 (the Direction) is unlawful and should not be given effect.

The Court of Appeal applied a very recent ruling (3 March 2011) of the CJEU Case C-50/09 Commission v Ireland, please click here to view.

The Commission’s complaints in that case included a complaint that the relevant national legislation failed to apply the Directive to demolition works.  The CJEU ruled that:

“101.  It follows that demolition works come within the scope of Directive 85/337 and, in that respect, may constitute a ‘project’ within the meaning of Article 1(2) thereof.
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103.        Ireland does not deny that, under the national legislation in force at the date of the additional reasoned opinion, demolition works were not subject, as a general rule, to an environmental impact assessment but, on the contrary, were entitled to an exemption in principle.

104.        It is clear from the rules laid down in sections 14 to 14B of the NMA as regards the demolition of a national monument that, as the Commission claims, they take no account of the possibility that such demolition works might constitute, in themselves, a ‘project’ within the meaning of Articles 1 and 4 of Directive 85/337 and, in that respect, require a prior environmental impact assessment.  However, since the insufficiency of that directive’s transposition into the Irish legal order has been established, there is no need to consider what that legislation’s actual effects are in the light of the carrying-out of specific projects, such as that of the M3 motorway.
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106.        In those circumstances, the Commission’s third    complaint in support of its action must be held to be well founded.

107.        Accordingly, it must be declared that….
-by excluding demolition works from the scope of its   legislation transposing that directive, Ireland has failed to fulfil its obligations under that directive.”  

The Court of Appeal thus allowed an appeal against the decision of HH Judge Pelling QC [2010] EWHC 979 (Admin); [2010] J.P.L. 1429.

The effect of the decision is that the demolition of buildings (save for those smaller than 50 cubic metres or the whole or any part of any gate, fence, wall or other means of enclosure, see paragraph 2(1)(e)-(f) of the Direction) is no longer excluded from the definition of development under the Town and Country Planning Act 1990 and is thus subject to prior approval under Part 31 of Schedule 2 of the General Permitted Development order and potentially subject to EIA screening.

James Maurici appeared for the Secretary of State.