“The building is part of the Housing Market Renewal Initiative.”
“You refer in your letter that the reason stated by the Council for the demolition of Nos 51-57 Springwell Road was that the properties were unsafe. However, the reason given for demolition in the prior approval application is that the properties form “part of the housing market renewal initiative”
“ I have not been provided with information on the wider scheme only the Chapel and am advised by the Council that they do not have information on the wider scheme given the timescales anticipated.”
“In particular the need for demolition and the number of dwellings concerned is comprehensively referenced throughout section 4 of the SPG”
“The proposal is within a densely developed residential area of predominantly empty properties. To the North East of the site lies an area of playing field, park, cemetery and a school. The proposal is set within an area which is identified for clearance in a development brief and Supplementary Planning Guidance dated 2004 for the Klondyke and Canal Corridor Area. Phase 1 of the clearance is predominantly completed but no specific proposals for demolition or redevelopment have yet been prepared for phases 2 and 3. The site is not within a defined sensitive area and is not within 1 km of local or national nature conservation, landscape or historic environment designations. The church is not a listed building.”
“The church is in a severely dilapidated state having been subject to numerous arson attacks. Internally the church has a strong smell of bird guano associated with pigeon droppings. The roof has largely collapsed as a result of the vandalism and is only partially intact. Photographs of the church are included in Appendix B.”
“Although the derelict church is unlikely to be a bat roost, the presence of small numbers of bats cannot be ruled out. Therefore a precautionary approach to demolition is recommended. It is recommended that if the building is to be demolished prior to the end of October the roof tiles are removed carefully by hand wherever possible to avoid harming any bats that might be present. … if demolition work will be undertaken between November and March it is unlikely that roosting bats would be present and therefore the works could proceed without the need for removal of the tiles or ceiling by hand. In the unlikely event that a bat is found at any time during the works, the bat should be left in situ; the work should stop; and an ecologist should be consulted immediately and will provide advice on how to proceed. ”
“Subject to the provisions of this Order… planning permission is hereby granted for the classes of development described as permitted development in Schedule 2.”
“(a) where demolition is urgently necessary in the interests of safety or health and the measures immediately necessary in such interests are the demolition of the building the developer shall, as soon as reasonably practicable, give the local planning authority a written justification of the demolition; (b) where the demolition does not fall in sub-paragraph (a) and is not excluded demolition - (i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the method of demolition and any proposed restoration of the site; (ii) the application shall be accompanied by a written description of the proposed development… (v) the development shall not be begun before the occurrence of one of the following - (aa) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required (bb) where the local planning authority give the applicant notice within 28 days following the date of receiving his application of their determination that such prior approval is required, the giving of such approval… (vi) the development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out- (aa) where prior approval is required, in accordance with the details approved; (bb) where prior approval is not required, in accordance with the details submitted with the application…” (i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the method of demolition and any proposed restoration of the site; (ii) the application shall be accompanied by a written description of the proposed development… (v) the development shall not be begun before the occurrence of one of the following - (aa) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required (bb) where the local planning authority give the applicant notice within 28 days following the date of receiving his application of their determination that such prior approval is required, the giving of such approval… (vi) the development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out- (aa) where prior approval is required, in accordance with the details approved; (bb) where prior approval is not required, in accordance with the details submitted with the application…”
“Member states shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia of their nature, size or location are made subject to a requirement for development consent and an assessment with regards to their effects. Those projects are defined in Article 4.”
“… for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through: a) a case-by-case examination; or b) thresholds or criteria set by the Member State.
“When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.”
“The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of “Schedule 2 Development” is satisfied in relation to that development.”
“The characteristics of development must be considered having regard in particular to - b) The cumulation with other developments.”
“(9) The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) (b) of the definition of “Schedule 2 development” is satisfied in relation to that development.”
“Pursuant to Article 191 of the Treaty on the Functioning of the European Union, Union Policy on the environment is based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay. Effects on the environment should be taken into account at the earliest possible stage in all the technical planning and decision-making processes.” (Emphasis added).
“The question whether the development is of a category described in either schedule must be answered strictly in relation to the development applied for, not any development contemplated beyond that. But the further question arising in respect of a Schedule 2 development, the question whether “it would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location” should, in my judgment, be answered rather differently. The proposal should not then be considered in isolation if in reality it is properly to be regarded as an integral part of an inevitably more substantial development. This approach appears to me appropriate on the language of the regulations, the existence of the smaller development of itself promoting the larger development and thereby likely to carry in its wake the environmental effects of the latter. In common sense, moreover, developers could otherwise defeat the object of the Regulations by piecemeal development proposals.”
“It is in this type of case, screening cases, that the courts have been concerned, energetically concerned, to put a stop to the device of using piecemeal applications as a means of excluding larger developments from the discipline of EIA. That approach can simply not be read across to a case which is not about screening at all, but rather about the appropriate scope of an EIA. 33. At the heart of this case, it seems to me, is the proposition that the issues arising here are not comparable with those that arose in these screening decisions. In a case such as the present as I have indicated, we are dealing with what is quintessentially a matter of judgement…”
“(i) The Council’s letter to the Secretary of State dated24 October 2011 identified the Chapel as one of the “Properties within Phases two and three of the Klondyke re-development area” and so to be demolished: (ii) The applicant for prior notification was the Council’s Housing Market Renewal Department and the reason given for demolition was that “the building is part of the Housing Market Renewal Initiative.” (iii) The July 2004 SPG Plan showed the retention of the Chapel but that was obviously no longer the Council’s intention. (iv) In the November 2004 Development Brief the reference to the possibility that a further community building could include replacement provision for the two charities in the area implied that it was by then intended to demolish the Chapel. (v) The Council’s Cabernet Report dated25 October 2010 stated that the Council was currently acquiring properties for demolition as and when residents were re-housed or when properties became vacant in most of the area known as Phases 2 and 3 although it was unlikely that most demolition in phases 2 and 3 would be achieved in the current financial year, with the licence in place vacant blocks could be demolished swiftly as resources became available. (vi) The HMR Klondyke Area Communities Facilities Study of October 2005 stated that the Chapel was located in Phase 3 of the development programme and that its future in the SPG was for eventual acquisition and demolition to make way for open space. As already mentioned the reference to the SPG stating that the Chapel’s future was for eventual demolition appears to have been incorrect. (vii) The HMR Transition Funding bid of July 2011 which was available to but not seen by Ms Lewis confirmed that the Council was carrying out a programme of demolishing Phases one, two and three”
“AG 74 The difficulties raised by projects that are divided in to a number of temporary sections were highlighted in Wells, Commission v United Kingdom and Barker, in which the court reiterated the need to assess such projects as a whole. In order to preclude the subject-matter of a project from being distorted by splitting it into a number of administrative stages, thereby leading to a failure to apply Directive 58/337, the court held that EIA “must be of a comprehensive nature, so as to relate to all the aspects of the project which have not yet been assessed or which require a fresh assessment”. (Barker [2006] E.C.R.I-3949 at [48]). In short, the review obligation laid down in Directive 85/337 does not allow for any loose ends and the different administrative stages of a project must not impede the achievement of the Directive’s aims.”
“This planning application … represents the first of two planning applications that seek to obtain permission for the Hastings Millennium Community Proposals in Ore Valley.”
“This detailed planning represents Phase one of the Millennium Community Proposals and forms part of the wider Ore Valley proposals that will be submitted for outlining planning permission in Autumn 2004”
“The carrying out of development to provide any of the following…”
“24. First, I see no reason to disagree with the Inspector’s conclusion (IR 7.73) that the July 2009 proposal was a ‘stand alone proposal which can be and is being considered on its own merits’ or the Secretary of State’s like conclusion at para 4 of the decision letter. This is so notwithstanding the fact (see para 4 of the appellant’s principal skeleton) that the third respondent’s intention has been to achieve a continuing facility for waste disposal effective, without interruption, until 2026. 25. Secondly, the judge was clearly right in my view to hold at [40] that: ‘In the present case, the permitted developments can go ahead irrespective of the future proposals. That was the finding of the Inspector, who said that this was a “stand-alone proposal”
“I am inclined to accept Mr McCracken’s submission for the third respondents that the Court of Justice is of course concerned to see that the law is properly applied in the Member States, but in the present context that is achieved by the Wednesbury standards. In the circumstances, I see no reason, even assuming it were open to us to do so, to seek to move the law from where it presently stands in this area. This, in any case, would not be the case in which to do so. [41]-[42]”
“40. In R (on the application of Buglife: v Invertedrate Conservation Trust) v Medway Council[2011] EWHC 746 (Admin) ; [2011] Env. L.R.27, HH Judge Thornton QC opined that the courts might visit the question whether European Union law required them to apply a proportionate standard. For my part, I do not see that there is any true question of proportionality arising in the present case. We are not concerned with the exercise of a discretion and therefore we are not concerned with assessing whether a response to a particular aim is or is not proportionate. We are concerned with a fact-finding exercise. There is nothing, as it seems to me, in the jurisprudence of the Court of Justice to show that the conventional English law approach is inapt. Paragraph [48] of Ecologistas perhaps suggests, though I accept it does not state, the contrary. Paragraph [39] of Abraham v Region Wallone (C – 2/07) [2008] E.C.R. I-1197; [2008] Env. L.R.32, which is a screening not a scoping decision, does not in my judgment assist the appellants. Mr Drabble had relied in a supplementary Skeleton Argument on other authority of the Court of Justice. However Commission v Germany (C- 431/92) and Commission v Spain are infringement cases in which the Court of Justice must inevitably make all judgments of fact and law. Kraaijveld in the circumstances takes the matter no further.”
“[t]he answer to the question – what are the cumulative effects of a particular development—will be a question of fact in each case.”
“Such information as it reasonably required” and “a description of likely significant effects”
“39. There is no doubt that the Brown decision (whilst clearly a scoping case) is distinguishable on its facts, since (paragraph 21) the section 106 Agreement ensured that the Freight Distribution Centre could not lawfully be developed in isolation; it could only be developed if its cumulative effects included the carrying out of the airport works. In other words, the airport works were integral to the permitted development; hence the question (paragraph 25) which had not been addressed, and to which there was only one rational response. 40. In the present case, the permitted development can go ahead irrespective of the future proposals. That was the finding of the Inspector, who said that this was a “stand alone proposal”
“34 I should next say a word about the effect of the grant of the present planning permission as a precedent, a “foot in the door”: an expression used by Sullivan LJ in Brown: see paragraph 39 of the judgment in that case. It is said it was a foot in the door for the larger intended scheme. As I have shown, the Inspector and the Secretary of State accepted that there would be some precedent effect. 35 The grant of planning permission may, in my judgment, be said to concede the principle of disposing of LLW on this site or adjacent to it, but only to the extent or on the scale allowed by the permission. If the larger application proceeds, the issue of disposal of LLW of the magnitude thereby contemplated will be open and undecided. It will certainly not be foreclosed nor in my judgment prejudiced by the current permission. It seems to me that the Secretary of State was entitled to conclude at paragraph 4 of the decision letter (which I have read) that: “There is nothing to support the Council's claim that permission in this case would frustrate the aims of the Environmental Impact Regulations and the Directive.”
“…the Directive's fundamental objective is that, before consent is granted, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a mandatory assessment with regard to their effects.”
“2.5 The appeal proposal is not piecemeal development or a development which can only properly be considered as part of a larger whole, as alleged in NCC's additional reasons for refusal (a) and (b) … both of which have been rejected in the PINS ruling. It is not inevitably part of a more substantial development. If permitted, the development will be implemented regardless of the outcome of any further planning application. There is no cumulative or in-combination situation that would arise between the two proposals, even if any implementation of a subsequent permission occurred prior to the expiry in 2013 of the one now sought, which seems unlikely. In any event, the subsequent application would require assessment on the full effects of the extension to the landfill area and the extension of time for the already permitted area so that any cumulative effects would be considered then. At present, it is not possible to carry out that exercise.” 36 Given all these considerations and for these reasons, I for my part would acquit the Secretary of State of any Wednesburyerror in judging that the EIA here need not encompass the third respondent's wider prospective scheme. I do not accept that the Inspector and the Secretary of State made, as is suggested, an impermissible leap from the view that this was a stand-alone project to the conclusion that, therefore, no EIA of the larger scheme was necessary. Account was taken of the relationship between the scheme in hand and the larger scheme; of the relevance of precedent; of the want of detail of the future scheme; of the fact that the current scheme could properly be dealt with on its own merits. 37 If one looks for a meaning of the term “indirect, secondary or cumulative effects”, it is perhaps worth emphasising that the grant of a further planning permission — here for the larger scheme — surely cannot of itself be such an effect. The putative “cumulative effects” on Mr Drabble's argument can only be what are the direct effects of the larger scheme itself or perhaps some effect factually arising from the current and larger scheme together. But all such effects would be examined if the larger scheme is gone into. 38 Thus I would not merely acquit the Secretary of State of a Wednesbury error. I consider, so far as the facts of the matter appear to me, that his conclusion was correct.”
“It should be noted that once proposals are available for elements or the whole of phase 2 and 3 the Secretary of State can consider a screening direction regardless of whether the proposals meet the threshold of 0.5 hectares”
“If the Council is serious about not commencing demolition in a piecemeal fashion and contrary to the requirements of [the Directive] it will make a planning application for the demolition at the appropriate time to include the whole of the phase 2-3 site… We therefore repeat our request that given the recent applications for prior approval referred to above, and the Council’s history of “salami slicing” the project to demolish 4.7 hectares of Victorian housing in order to avoid [EIA] the Secretary of state please reconsider his decision as a matter of urgency. That decision of course was the decision on28 October 2011 that screening was premature in relation to phases 2 and 3.”
“…the Directive’s fundamental objective is that before consent is granted, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a mandatory assessment with regards to the effects.”