R (Save Britain's Heritage) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 2010 |
| Neutral Citation | [2010] EWHC 979 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 May 2010 |
| Docket Number | Case No: CO/14802/2009 |
[2010] EWHC 979 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge street West
Manchester M60 9DJ
Before: His Honour Judge Pelling QC
Sitting as a Judge of the High Court
Case No: CO/14802/2009
Richard Harwood and Andrew Deakin (instructed by Richard Buxton, Solicitors) for the Claimant
James Maurici (instructed by Treasury Solicitors) for the First Defendant
The Second Defendant and Interested Party did not appear and were not represented.
Hearing date: 27 th April 2010
HH Judge Pelling QC::
Introduction
The Issues
This is the hearing of an application for judicial review by which the Claimant seeks a declaration that paragraphs 2(1) (a)—(d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 (“the Demolition Direction”) are unlawful and should not be given effect and that in consequence planning permission was and is required for the demolition of Mitchell's Brewery, Brewery Lane, Lancaster (“the Brewery”). The thesis that paragraphs 2(1) (a)—(d) of the Demolition Direction are unlawful depends upon a submission that the effect of the Demolition Direction is contrary to the requirements of the Environmental Impact Assessment Directive (85/337/EEC) (as amended) (“the EIA Directive”). This in turn depends upon a submission by the Claimant that the EIA Directive requires an Environmental Impact Assessment to be carried out prior to the demolition of a building. The First Defendant's case is that the EIA Directive does not apply to demolition works but even if he is wrong on that point, his case is that the point is academic as the demolition of the Brewery would not, in any event, be unlawful.
Preliminary Points
i) Originally, there were two further grounds of challenge – one based on an assertion that the Demolition Direction did not apply in any event and a further allegation that the Second Defendant had failed to comply with its obligations under the Habitats Directive (1992/43/EEC). Both these grounds had been abandoned by the time of the hearing before me. It is not necessary for me to take up time explaining why that was so
ii) The primary issues between the parties – whether the EIA Directive is capable of applying to demolition works– is an issue that it is likely will be resolved in Commission v Ireland (C-50/09) a case pending before the CFI of the ECJ. It was suggested that argument in that case was due to be heard at the end of June 2010 but that it was likely that there would be a significant delay before a judgment was promulgated. I suggested to the parties that it might be appropriate to stay the current proceedings pending the determination of those proceedings but neither party was inclined to agree with this suggestion. I was also informed that judicial review proceedings had been commenced by the Claimant in respect of a proposal at Trevethick Street, Bensham, Gateshead dated 12 November 2009 for the demolition of 154 houses and the top soiling and grassing of the site where the same issue arises. Again I suggested that it might be sensible for this case to be stayed and then listed for hearing with that case. However, again neither party was prepared to agree to this suggestion because the Gateshead case has not progressed very far and for reasons that are not clear at any rate to me were commenced in London in any event. My suggestion that the delay would not be entirely wasteful since the decision of the ECJ in Commission v Ireland (C-50/09) might by then be available again did not appeal to the parties. Notwithstanding this lack of enthusiasm I gave some thought during the hearing to whether I should in any event stay these proceedings, give directions concerning the transfer of the Gateshead proceedings to Manchester and for a stay of both until the decision of the ECJ had been promulgated. However, I have to say with some reluctance, I decided not to adopt that course taking the view that if both parties wanted the question addressed by me in this case it was my duty to proceed since the delay that might otherwise result could be considerable. I was also influenced by the fact that there is in this case (now) a continuing injunction which restrains demolition, that the First Defendant argues that the dispute concerning the effect of the EIA on the Demolition Direction is in any event academic on the facts of this case and also by the fact that neither the Second Defendant nor the Interested Party were before me and would not have the opportunity therefore to address me on the point.
The Factual Background
The Brewery is a redundant building that is unoccupied and has been for a number of years. It is in dilapidated condition. It consists of an 18 th century malt house and low tower together with 19 th and early 20 th century additions, including a four storey brew house tower and associated range. There is also a more modern building which is attached to the older buildings I have described. The northern part of the Brewery site includes another modern building and yard.
On 3 rd July 2008, Centros Miller LLP lodged an outline planning application together with a series of ancillary applications for listed building consent and conservation area consent for the redevelopment of the Lancaster Canal area. These proposals included demolition of the Brewery. This application covered 5.4 hectares and was accompanied by an Environmental Statement under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations”).The applications by Centros Miller LLP were originally recommended for approval by the Council's Planning Committee in October 2008 but the First Defendant called the decision in following representations from, amongst others, the Claimant and English Heritage.
A public inquiry into the proposals was held by a planning inspector in Lancaster between 16 th June and 2 nd July 2009. Centros Miller LLP did not attend. The Council appeared initially and tendered evidence in support of the application, but withdrew from an active part in the inquiry on 25 th June 2009 apparently after its Conservation Officer had accepted that the scheme was unacceptable in heritage terms. As is accepted by the Claimant in Paragraph 10 of Mr Harwood's skeleton submissions, by the time the Inquiry closed, “It was obvious that the prospects of planning permission for the Centros proposals being granted under these circumstances were remote.” The Inspector's report dated 29 th October 2009 recommended that the applications be refused and the First Defendant refused permission for the redevelopment scheme by a letter of 21 st December 2009. Both parties rely on various extracts from the report as supporting their factual case but in my judgment they are immaterial to the issues I have to decide.
On 9 th October 2009, the Interested Party submitted to the Council a notice under s.80 of the Building Act 1984 giving notice of intention to demolish the Brewery together with a map and accompanying Google photograph showing the demolition site. Although there was at one stage a dispute about whether the Google photograph was included or not, I am satisfied that the evidence demonstrates that it was – see Paragraph 3 of Mr Dobson's 2 nd witness statement. He also gives evidence that is not disputed before me that the site as shown on the photograph is less than 0.5 hectares in area. The s.80 notice described the buildings as “redundant” and in a subsequent Application for Prior Notification dated 19 th October 2009, the Interested Party gave as its reasons for wanting to demolish the building that it “… has been vacant for several years and is redundant to its previous use and in a condition which would make it financially unviable to restore”. This document was faxed to the Second Defendant on 22 nd October 2009 and gave 30 th November 2009 as the proposed demolition date. This application appended a plan identifying a smaller area for demolition than that identified in the s.80 notice
Meanwhile, on 21 st October 2009, the Claimant sent the Defendants a pre-action protocol letter in which it argued that paragraph 2(1) (d) of the Demolition Direction was not consistent with European Law, that in consequence effect should not be given to it and from that it followed that demolition of the Brewery would constitute “development” within the meaning of the Town and Country Planning Act 1990 (“TCPA”) and as such planning permission for the demolition would be required. One of the other grounds subsequently abandoned was also identified.
On 28 th October 2009, the Second Defendant wrote to the Interested Party saying that prior approval for the demolition of the buildings was required under the General Permitted Development Order 1995 given the proximity to residential dwellings of the buildings it was proposed should be demolished. The Council sought further details of the proposed works and also raised the matter of the necessity for a screening opinion under the EIA Regulations.
On 30 th October 2009, the Second Defendant then wrote to the Claimant's solicitors saying that while the Council would not express a view on the lawfulness of the Demolition Direction (i) the Council would be serving a counter-notice to the s. 80 Notice within the prescribed time limits and (ii) that prior approval...
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