Demolition Derby – Save Britain’s Heritage –v- Secretary of State for Communities and Local Government – 25 March 2011 Court of Appeal [Civil Division] EWCA CIV 334.

This Update reports on the landmark ruling of the Court of Appeal in the above case that the demolition of buildings is a "project" for the purposes of EIA Directive 85/337/EEC requiring in certain circumstances for an Environmental Impact Assessment ("EIA") to be undertaken before planning approval can be granted.

The Court also ruled that the Secretary of State’s Direction contained in Appendix A to Circular 10/95: Planning Controls over Demolition, paragraphs 2(a) – (d) of the Town and Country Planning (Demolition - Description of Buildings) Direction 1995 (“English Direction”) is unlawful and should not be given effect.

Whilst this is an English case, it will be highly persuasive in interpreting Scottish planning law as the EIA Directive is applicable to Scotland and implemented through the EIA Regulations 2011. The English Direction excludes from the requirement for planning permission the demolition of any listed building; any building in a conservation area, any scheduled monument, and any building that is neither a dwelling nor adjoining a dwelling and is almost identical to the equivalent Scottish Direction. The reason these Directions exclude such categories of buildings is that they are subject to separate legal controls but such controls do not require an EIA.

Where an EIA is required due to the significance of the impacts on the environment, the permitted development rights otherwise granting deemed permission for demolition will not apply and a formal application for planning permission will be needed. Such an application will require to be accompanied by an Environmental Statement.

This case will have important implications for planning authorities, developers and all parties engaging in the planning system in regard to planning permissions involving the demolition of buildings.

Extant planning permissions will need to be reviewed to establish whether demolition is expressly included and if not to ensure that the prior notification procedure is taken into account in any project development timetables.

For fresh applications going forward it is important that demolition is specifically referred to in the planning application and just as importantly in the actual grant of planning permission. Consideration needs also to be taken as to whether screening for EIA should be undertaken.

No doubt consideration will be given to amending the current statutory arrangements to take account of this ruling.

Further information

For further information please contact Alastair McKie or Cecilia O'Connell.

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