EIA - a precautionary tale

EIA screening should be comprehensive, says Paul Stookes.

In the case of R (Birch) v Barnsley Metropolitan Borough Council [2010] EWHC 416 (Admin) the High Court quashed the grant of planning permission for a waste composting site.

The proceedings centred on whether or not the Council failed to take into account the spreading of processed material (as either waste or compost) after the composting operations were complete.

The High Court referred to the European Court of Justice (ECJ) case of Commission v Italy [2004] C-87/02 which held that Environmental Impact Assessment (EIA) screening must not undermine the objective of the Directive and that "no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive screening, be regarded as not being likely to have such effects".

It is a requirement that often appears to be ignored by decision-makers when carrying out their screening functions.

The Court of Appeal has recently upheld the High Court decision.

It also affirmed that a precautionary approach should be taken when applying the Directive, that project splitting would undermine the very purpose of the regime and that the cumulative effects of the whole project should be taken into account when screening; not simply those arising from the development as set out on the planning application.

Application

The above points of principle are important for everyone working in the EIA field and it is helpful to understand the above legal principles as they applied to the facts in the Barnsley case.

A local farmer had since 2007 been seeking to develop a waste composting facility on farmland in Bagger Wood Hill, a rural area outside Barnsley, South Yorkshire.

The site was to be used to dispose of the Council's own green waste and the facility would use an open windrow composting system.

Two early planning applications were either recommended for refusal or refused by the Council members and a third application was made in February 2008.

There was significant local concern about the proposal relating to, among other things, odours, bio-aerosol emissions and an increase in HGV traffic in the locality.

A three-page screening opinion by way of a checklist had been carried out by the Council.

It contained errors; not least, by concluding that the proposal did not fall within Schedule 2 of the EIA Regulations 1999, although the Council conceded during the High Court trial that the proposal did amount to the disposal of waste and therefore came within paragraph 11(b) of Schedule 2.

The screening opinion was placed on the planning register in February 2009 a few weeks before the final grant of permission and nearly a year after the screening opinion was expressed to have been carried out.

However, while these inadequacies were of concern, the critical problem was that the Council had failed to regard the spreading of the final waste/compost product on fields adjoining the waste site as part of the overall project.

It maintained that the spreading of the end product was not development for the purpose of either the EIA Regulations 1999 or the EIA Directive 85/337/EEC and that it therefore did not need to be considered when carrying out its EIA screening assessment.

Its rationale was that it was an agricultural activity and therefore would not be development under the Town and Country Planning Act 1990.

In March 2010, the High Court quashed the planning permission on the basis that if the material spread (after degradation in the windrows) could be correctly described as waste, then the conclusion as to whether an EIA was required was likely to have been different.

The Judge held that this was "a matter requiring detailed consideration within the context of the preparation of the screening opinion, but such consideration simply was not given in any structured way.

The ultimate conclusion as to whether the development is permitted may or may not be the same thereafter, but the failure to give any real consideration to the point is a very serious error".¹

The Council appealed to the Court of Appeal.

Appeal

The appeal was dismissed on 6 October 2010. On giving judgment Lord Justice Sullivan held that the High Court Judge was correct in his analysis and that, given the error in the screening opinion, it was difficult to see how what had been carried out could amount to a comprehensive screening opinion, which took all relevant matters into account.

The Council had been obliged to consider not merely the characteristics of the development itself but its cumulative effects. Sullivan LJ explained that in applying the EIA Directive a precautionary approach should be taken. This was clear from the preamble to the EIA Directive.

The precautionary principle is also found in the preamble to the Amending Directive 97/11/EC.

The Council argued that the correct approach was to wait and see whether the proposed spreading would amount to development and, if it was, and the developer failed to apply for planning permission, the Council had the power to take enforcement action.

However Sullivan LJ held that the Council's ‘wait and see' approach was the opposite of the precautionary principle. He noted that the best form of environmental protection was to prevent rather than combat adverse effect.

Further, if under the ‘wait and see' approach enforcement action was contemplated, a decision-maker would have to take account of earlier planning permission for composting facility.

This was exactly what the cumulative effect doctrine was meant to prevent. This would be project splitting and such an approach would undermine the purpose of the Directive.

The screening opinion was further flawed by noting that any potential impacts arising out of the waste process should be ‘controllable'.

However, Sullivan LJ held that EIA would be required so that proposed control/mitigation measures could be identified through the EIA process.

Those measures would then be subject to public scrutiny and explored as to their efficacy.

Finally, the Court of Appeal noted that the spreading process could potentially have been ignored in the screening opinion if, and only if, conditions had been proposed to ensure that the quality of the composted material spread was so high that it would cease to have been waste.

However, there had been no evidence before the Council that this was so.

The developer had not suggested that any particular quality of compost was to be spread and the Council had not considered that a minimum standard would necessarily have been imposed.

In short, the Council simply could not know whether the spreading operation amounted to a permitted agricultural activity or development, and its consideration of the cumulative effects was inadequate.

A new position

Indeed, the composting of waste is often regarded as a benign process that is likely to have minimal or no adverse effects.

This is not the case. The Environment Agency has found it necessary to revise its position statement on composting more than once in order to try and address the uncertainty of bio-aerosol emissions from these processes.

Further, that environmental problems continue to arise from these sites is clear from recent guidance issued by Defra entitled ‘Guidance on Composting and Odour Control for Local Authorities' (March 2009).

The conclusion that should be drawn is that green waste composting is a ‘waste' process and should be regarded as such by all decision-makers.

The Barnsley case is perhaps another example of a decision-maker seeking to exclude a project from the EIA regime when the Directive requires an inclusive approach - that is, if there is any doubt as to potentially significant environment effects, then an EIA should be undertaken on a precautionary basis to clarify this prior to the grant of permission.

This is consistent with the long line of ECJ cases from Kraaijeveld [1997] to Ecologistas [2008] in which the court has repeatedly stated that the Directive has "wide scope and broad purpose".

EIA has an important role to play in ensuring that any potential adverse effects of a proposed development are prevented where at all possible.

However, in doing so, decision-makers must ensure that their evaluation of whether or not the EIA Directive applies is comprehensive, avoids project splitting and takes a precautionary approach.

They should also ensure that if control measures are to be used to prevent any adverse effects, then those very control measures should be subject to EIA under Article 5(3) of the Directive.

¹R (Birch) v Barnsley MBC [2010] EWHC 416 (Admin)