Environment law: EIA and 'end products'
Recent case law may mark a new chapter in EIA law and practice, says Stephen Tromas
Environmental impact assessment (EIA) continues to require fundamental reappraisal of long-held tenets of UK planning law.
Only recently, in R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government ([2011] EWCA Civ 334), the Court of Appeal (CA) held that demolition of a building may be a “project” requiring an EIA.
The decision renders the direction given in 1995 by the secretary of state for the environment that much, if not most, demolition is not “development” as void. In reality, the CA had little alternative but to follow the decision of the European Court of Justice (ECJ) in the case of The Commission v Ireland (Case C-50/09), which was handed down on 3 March 2011.
The ECJ ruled that such works can be a “scheme” or an “intervention in the natural surroundings and landscape” in terms of art. 1.2 of the EIA Directive (85/337/EEC).
The case provides a striking textbook example of how EU law makes it necessary to think outside established “boxes” in terms of planning law and policy. Another possible European case, which has yet to make its mark, is Paul Abraham v Région Wallone (Case C-02/07). It concerned a claim for compensation for nuisance for residents living near a former military airport that had been refurbished with improvements enabling it to be used 24-hours a day, 365 days a year.
The case raised a number of points to do with the EIA Directive, which was referred to by the ECJ. One was whether the competent authorities had an obligation to take account of the projected increase in the activity of an airport in determining for screening purposes whether the change to the existing airport must be made subject to an assessment of its impact on the environment.
The ECJ concluded that there was such an obligation to take account not just of the effect of the actual works but of the effects of the project – the improvement of the airport and its consequent expanded use.
The court said “Directive 85/337 seeks an overall assessment of the environmental impact of projects or of their modification”, adding that: “it would be simplistic and contrary to that approach to take account, when assessing the environmental impact of a project or of its modification, only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works.”
The environmental impact of the end product of the works in that case was, of course, noise and disturbance from more intensive airport use. However, the passage emphasised above might be taken as having further implications depending on how far it is pressed.
A new development may produce or market goods or services, the consumption of which has environmental effects. Or it may consume products, the production of which may have environmental effects. This approach finds echoes in the recent planning appeal decision by the secretary of state for communities and local government (CLG) on the former Sevalco site at Avonmouth, which was reported in the environmentalist in March.
The proposal was for a biofuel renewable-energy plant. The CLG secretary invited representations after the close of the inquiry on the source and sustainability of the fuel to be used, including whether that was a material consideration in determining the appeal.
His conclusion was that, while the sustainability and geographical source of a fuel would not be a material consideration for a non-renewable generating station, the sustainability of bioliquid fuels was a material consideration relevant to his decision.
It is interesting to consider how EIA practice might develop if such an approach was more generally adopted outside the rather specialist regime of renewable energy. In principle, such matters are indirect effects and accordingly within the scope of the Directive, but their meaningful assessment may present challenges.
The comment in the Abraham case could potentially be read as limited to the facts of the case, involving as they did works which would change an airport’s use in such a way as to have direct effects. But EU environmental law has a habit of developing in sometimes unexpected, incremental ways, and it would not be the first time a loosely framed comment in a judgment has been picked up and developed into new jurisprudence in later cases.