Bowled over: the EIA 'precautionary principle'

Stephen Tromans examines an appeal to block the redevelopment of a bowls club through the 'precautionary principle'

One does perhaps not immediately think of the environmental impact assessment (EIA) regime as being primarily focused on projects such as the redevelopment of a sedate bowls club at Bexhill-on-Sea. Yet in the EIA field, cases with rather unpromising facts seem to have a way of giving rise to far-reaching decisions.

The Bexhill-on-Sea redevelopment was the subject of a recent and important decision by the Court of Appeal in R (Loader) v Secretary of state for communities and local government [2012] EWCA Civ 869.

A proposal to redevelop Gulliver’s Bowls Club to form 41 sheltered apartments for elderly people, as well as a new outdoor bowls green and indoor rink, was challenged by Anne-Marie Loader, who, in 2008, had succeeded in getting planning permission for the same scheme quashed for failure to follow the procedural requirements of the EIA Regulations.

The matter had then been remitted to the secretary of state, who made a screening direction that the scheme fell within para. 10(b) of Sch 2 (urban development project) and exceeded (by 0.2 hectares) the 0.5 hectare threshold, but was unlikely to have significant effects on the environment. The matter then proceeded to appeal, again.

The inspector confirmed that in view of the scale of the development and the lack of adverse impact on sensitive areas or protected species there would indeed be no significant effects.

Straightforward enough, one would think. But counsel for Loader advanced a submission that sought to link the decision on screening to the precautionary principle and the approach to screening for appropriate assessment under the Habitats Directive (92/43/EEC) in the Waddenzee case (Case C-127/02).

This would mean that unless the decision-maker could exclude on the basis of objective evidence the real possibility of there being significant effects, then an EIA was required.

This hard-edged approach would be a very different test to that previously applied by the courts – that significant effects and their likelihood are not a precise legal test but a matter of degree, calling for the exercise of judgment by the decision-maker.

The challenger’s approach would mean that pretty much every planning application that was controversial on environmental grounds would be subject to the procedural requirements of EIA. In that, the challenger relied on the sentence in the European Commission guidance that says: “A useful simple check is to ask whether the effect is one that ought to be considered and to have an influence on the development control decision.”

Giving the judgment of the Court of Appeal, Lord Justice Pill said: “The decision-maker must have regard to the precautionary principle and to the degree of uncertainty, as to environmental impact, at the date of the decision. Depending on the information available, the decision-maker may or may not be able to make a judgment as to the likelihood of significant effects on the environment.

"There may be cases where the uncertainties are such that a negative decision cannot be taken. Subject to that, proposals for ameliorative or remedial measures may be taken into account by the decision-maker.”

He went on to say: “The proposed test does not accord with the overall purpose and tenor of the procedure initiated by the Directive. A formal and substantial procedure is contemplated, potentially involving considerable time and resources. It is contemplated for a limited range of Sch 2 projects, those which are likely to have significant effects on the environment.

"To require it to be followed in all cases where the effect would influence the development consent decision would devalue the entire concept. It is not contemplated, for example, that if the secretary of state took the view that a proposed house extension might affect the amenity of a neighbour on environmental grounds, and do so decisively, it would for that reason necessarily be EIA development.

“Applying that approach to the present facts, I have no doubt that the inspectorate was entitled to conclude that the proposed redevelopment would not have significant effects on the environment.”

The decision is important as obviously the alternative approach, if accepted, would have very far-reaching implications. However, it should be noted that the approach requires the screening decision to be placed in context – the less information available the more precautionary the approach required and there may be cases where the uncertainties leave the screening authority with no alternative but to give a positive opinion that EIA is required.