COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE PELLING QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE SULLIVAN
| THE QUEEN (ON THE APPLICATION OF SAVE BRITAIN'S HERITAGE)
|- and -
|(1)SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) LANCASTER CITY COUNCIL
|MITCHELLS OF LANCASTER (BREWERS) LTD
for the Appellant
James Maurici (instructed by Treasury Solicitors) for the First Respondent
Hearing date : March 9th 2011
Crown Copyright ©
Lord Justice Sullivan :
" - 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…." (Article 1.2).
i) Demolition of buildings is capable of constituting a project falling within Annex II of the Directive; and
ii) 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.
"(1) Subject to the following provision of this section, in this Act, except where the context otherwise requires, development means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."
"Building operations" includes "demolition of buildings." (subsection 55(1A)(a)). However, subsection 55(2) provides that:
"The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land – …………….
(g) the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities generally or to a particular local planning authority."
"2.-(1) Subject to sub-paragraph (2), the demolition of the following descriptions of building shall not be taken, for the purposes of the Town and Country Planning Act 1990, to involve development of land:
(a) any building which is a listed building as defined in section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990;
(b) any building in a conservation area;
(c) any building which is a scheduled monument as defined in section 1(11) of the Ancient Monuments and Archaeological Areas Act 1979;
(d) subject to sub-paragraph (3), any building other than a dwelling-house or a building adjoining a dwelling-house;
(e) any building the cubic content of which, measured externally, does not exceed 50 cubic metres;
(f) the whole or any part of any gate, fence, wall or other means of enclosure.
(2) The descriptions of building in sub-paragraph (1) do not include the whole or any part of any gate, fence or other means of enclosure in a conservation area."
"that demolition other than demolition forming part of what would otherwise be a project within the meaning of the EIA Directive does not come within the scope of the EIA Directive."
"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.
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.
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."
"87 The Commission claims that Ireland's interpretation that demolition works fall outside the scope of the directive is reflected in the NMA, and refers in that regard to section 14, 14A, and 14B of that Act which relate to the demolition of a national monument.
88 By way of illustration of how, in contravention of Directive 85/337, the exclusion of demolition works allowed, by virtue of section 14A of the NMA, a national monument to be demolished without an environmental impact assessment being undertaken, the Commission cites the ministerial decision of 13 June 2007 ordering the destruction of a national monument in order to permit the M3 motorway project to proceed."
In response, Ireland submitted that "Demolition works do not fall within the scope of [the] Directive….. since they are not mentioned in Annex I or II thereto" (para 90).
"97 As regards the question whether demolition works come within the scope of Directive 85/337, as the Commission maintains in its pleadings, or whether, as Ireland contends, they are excluded, it is appropriate to note, at the outset, that the definition of the word 'project' in Article 1(2) of that directive cannot lead to the conclusion that demolition works could not satisfy the criteria of that definition. Such works can, indeed, be described as 'other interventions in the natural surroundings and landscape'.
98 That interpretation is supported by the fact that, if demolition works were excluded from the scope of that directive, the references to 'the cultural heritage' in Article 3 thereof, to 'landscapes of historical, cultural or archaeological significance' in point 2(h) of Annex III to that directive and to 'the architectural and archaeological heritage' in point 3 of Annex IV thereto would have no purpose.
99 It is true that, under Article 4 of Directive 85/337, for a project to require an environmental impact assessment, it must come within one of the categories in Annexes I and II to that directive. However, as Ireland contends, they make no express reference to demolition works except, irrelevantly for the purposes of the present action, the dismantling of nuclear power stations and other nuclear reactors, referred to in point 2 of Annex I.
100 However, it must be borne in mind that those annexes refer rather to sectoral categories of projects, without describing the precise nature of the works provided for. As an illustration it may be noted, as did the Commission, that 'urban development projects' referred to in point 10(b) of Annex II often involve the demolition of existing structures."
(a) to shore up any building adjacent to the building to which the notice relates,
(b) to weatherproof any surfaces of an adjacent building that are exposed by the demolition,
(c) to repair and make good any damage to an adjacent building caused by the demolition or by the negligent act or omission of any person engaged in it,
(d) to remove material or rubbish resulting from the demolition and clearance of the site,
(e) to disconnect and seal, at such points as the local authority may reasonably require, any sewer or drain in or under the building,
(f) to remove any such sewer or drain, and seal any sewer or drain with which the sewer or drain to be removed is connected.
(g) to make good to the satisfaction of the local authority the surface of the ground disturbed by anything done under paragraph (e) or (f) above,
(h) To make arrangements with the relevant statutory undertakers for the disconnection of the supply of gas, electricity and water to the building,
(i) To make such arrangements with regard to the burning of structures or materials on the site as may be reasonably required by the fire and rescue authority,
(j) To take such steps relating to the conditions subject to which the demolition is to be undertaken, and the condition in which the site is to be left on completion of the demolition, as the local authority may consider reasonably necessary for the protection of the public and the preservation of public amenity.
Lord Justice Toulson