Court of Appeal rules that most of the Town and Country Planning Demolition Direction is unlawful

Court of Appeal rules that most of the Town and Country Planning Demolition Direction is unlawful


R(SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government

25th March 2011

[2011] EWCA Civ 334

The Court of Appeal has ruled that demolition is a project within the Environmental Impact Assessment Directive.  It has allowed SAVE Britain’s Heritage’s judicial review against the proposed demolition of the former Mitchell’s Brewery site in Lancaster. 

The Town and Country Planning (Demolition – Description of Buildings) Direction 1995 paragraph 2(1) provided that the demolition of the following buildings was not development and so did not need planning permission:

(a)        any building which is a listed building …;

(b)        any building in a conservation area …;

(c)        any building which is a scheduled monument …;

(d)        … any building other than a dwelling house or a building adjoining a dwelling house;

(e)        any building the cubic content of which, measures externally, does not exceed 50 cubic metres;

(f)         the whole or any part of any gate, fence, wall or other means of enclosure

The effect of this provision is that demolition within these categories cannot be subject to Environmental Impact Assessment.  The Secretary of State considered that demolition fell outside the EIA Directive.  Consequently he decided in another case (Bensham, Gateshead) that demolition of dwelling houses and buildings adjoining dwelling houses which have permitted development rights by Part 31, Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995 did not (and could not) require EIA.  Since permitted development rights are withdrawn where EIA is required that view was of considerable practical importance in housing clearance and Pathfinder cases.

Contrary to the Secretary of State’s view, the Court of Appeal held that demolition could be a project under Article 1.2 of the EIA Directive (either as a ‘scheme’ under the first limb of the Article or as ‘other interventions in the natural surroundings and landscape’ under the second limb). Sullivan LJ held that ‘If it is accepted that works are capable of having significant effects on the environment, the definition of “project” in Article 1.2 should, if possible, be construed so as to include, rather than excluded, such works’.  He rejected the Secretary of State’s argument that ‘landscape’ was confined to a rural landscape.  The Court also went on to explain (in reliance on the case of Commission v Ireland C-50/09) that the lists of projects at Annex I and II of the Directive should be  read as “sectoral categories” and not as descriptions of precise works and demolition works can constitute “urban development projects”. 

Turning to the Demolition Direction, the Court of Appeal held ‘It is a curious, and thoroughly unsatisfactory, feature of the Direction that those demolitions which are most likely to have an effect on the cultural heritage – the demolition of listed buildings, ancient monuments and buildings in a conservation area – are effectively excluded from the ambit of the Directive.’

The Court granted the declaration sought by SAVE that paragraph 2(1) (a) to (d) of the Demolition Direction are unlawful and so the first four categories of demolition require planning permission in addition to any other consent.  The Court did not consider whether the exclusions in subparagraphs (e) and (f) are lawful.  

Demolition under subparagraphs (a) to (d) is capable of attracting permitted development rights under Part 31.  A person proposing to carry out demolition under that Part must apply to the local planning authority (except in cases of urgency) to see if prior approval of the method of demolition and any proposed restoration of the site is required.  Where proposed development falls within Schedules 1 or 2 of the Environmental Impact Assessment Regulations, permitted development rights can only apply if a screening opinion or direction has been adopted that EIA is not required.  The Secretary of State can also require EIA of projects outside the thresholds and criteria in Schedule 2 by making a regulation 4(8) direction.  Consequently where a proposed demolition is likely to have significant effects on the environment permitted development rights are withdrawn.  The developer will then have to apply for planning permission and an EIA be carried out.  Permission to demolish might then be refused.

The Secretary of State’s applications for permission to appeal to the Supreme Court and for a stay of the declarations and quashing order were refused.  Sullivan LJ said that the Court were entirely satisfied that granting a stay will cause more confusion than refusing it.

Richard Harwood and Andrew Deakin appeared for SAVE Britain’s Heritage.

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