The English Court of Appeal in the case of R (Save Britain's Heritage) v Secretary of State for Communities and Local Government has recently decided that the demolition of a building is capable of constituting a project which falls within the ambit of the Environmental Impact Assessment (“EIA”) Directive.
The Secretary of State and the local planning authority had allowed the demolition of a redundant brewery in Lancaster without first assessing whether an Environmental Impact Assessment should be required.
The appellant argued that the EIA Directive required an Environmental Impact Assessment to be carried out prior to the demolition of a building. The Town and Country Planning (Demolition - Description of Buildings) Direction 1995 had excluded certain categories of demolition from the planning system and therefore the need to screen against the requirement for an Environmental Impact Assessment. The 1995 Direction had been given by the Secretary of State on the basis that demolition was not capable of being a project for the purposes of the Directive.
The Court of Appeal took the contrary view to the Secretary of State and held that the 1995 Direction (paragraphs 2(1)(a)-(d)) was unlawful and should not be given effect; and that demolition of buildings was capable of constituting a project falling within the EIA Directive.
The general position in Scotland regarding demolition is similar to that south of the border: demolition requires planning permission unless it falls within one of the many exceptions which (subject to some important qualifications) take demolition out of the planning process.
Although the case is a decision of the English Court of Appeal, in holding that demolition works can constitute 'development' and therefore potentially trigger EIAs for the purposes of English planning legislation, the Scottish courts are very likely to follow suit.