Environmental law update

Despite a number of government statements to the contrary, the quality of our environment in many parts of the UK continues to deteriorate. There is, for instance, more noise, more light pollution, increased air pollution in urban areas and more waste than ever. A key problem is that the consideration of any new proposal in the land-use planning system is often assessed against a baseline of existing environmental effects.

If, therefore, a local community is experiencing background noise levels that exceed World Health Organization guidelines, and a proposal is likely to generate further noise, the already noisy environment will be regarded as the acceptable starting point, which may then ‘mask’ much of the noise from the new project.

This approach suggests that if your environment is already polluted, a bit more pollution won’t make much more difference. A brief scratch below the complex surface of noise assessment shows how artificial this will be. Unfortunately, it is the approach being argued on behalf of many environmental decision-makers at local and national level.

A number of recent cases challenging decisions as to whether environmental impact assessment (EIA) should form part of the planning permission process have raised the above concern. Those potentially affected by increased pollution argue that when deciding whether a proposal should be subject to EIA (and therefore a full assessment of environmental effects of a project), the existing environmental effects of, say, already excessive noise levels, should not be the starting point for
the further potential environmental harm on which to then add yet more harm.

Rather, the existing potential harm must be assessed together or ‘in cumulation’ to see whether the environmental harm as a whole would be unacceptable. The obligation to do this appears clear from the EIA directive 2011/92/EU and, in particular, article 4(3) and annex 3, which requires that the characteristic of potential projects must include the cumulation with others.

Thus, if noise levels in a locality are already bad, this would lend very strongly towards requiring EIA to inform the decision-making process and to really understand how: (a) any further noise (and not only the potential for significant new noise) is going to further deteriorate matters; and (b) how the potential increase in noise and the existing significant noise levels could collectively be prevented, mitigated or reduced to a minimum
as part of the proposal.

Cumulative effects

The question of cumulative environmental effects was clarified in R (Baker) v BANES [2010] 1 P&CR 4 in which Collins J held that when carrying out EIA screening, it was unlawful to simply look at the change or extension to an existing project noting that: “…it is plain beyond any peradventure that it is not appropriate, in the light of the jurisprudence of the court and the purpose behind the directive, to regard only the modification itself and not the effect on the development as a whole of any such modification to it.”

This followed a long line of EU jurisprudence on what is described as project splitting, culminating in case C-142/07 Ecologistas v Ayuntamiento de Madrid [2008] in which the European Court of Justice held that the purpose of the EIA directive “cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect
of several projects...”

Baker prompted the government to acknowledge that the EIA regulations 1999 were inadequate and remedied this by enacting the EIA regulations 2011 (SI 2011/1824).

However, in Smout v Welsh Ministers [2011] EWCA Civ 1750, the Court of Appeal referred to the judgment in Baker as “a little opaque” and that the question to ask on assessing environmental effects was: what difference do they make?

In Smout, Laws LJ appeared to limit that question to the facts. Perhaps as importantly, the court was considering the inadequately transposed EIA regulations 1999; the Welsh government having not enacted amended regulations in line with Baker (this remains the current position). Laws LJ discussed the question of cumulative effects by reference to R (Brown) v Carlisle City Council [2011] Env LR 5 and said that the question was one of fact. This may well be the case in the context of EIA scoping, as in Brown, and where at some point a decision has been taken that the proposal is EIA development.

However, in Smout, Baker, Oldfield and most other EIA cases, the point at issue is EIA screening and whether or not EIA should be undertaken at all. For EIA screening, the question of cumulative effects is one of law as much as fact where it is essential to interpret annex 3 of the EIA directive correctly, and in the directive’s ‘wide scope and broad purpose’, notwithstanding that answering the legal question will involve a factual assessment.

Judicial review

There has been some clarification in recent High Court case Oldfield v Secretary of State [2013] EWHC 4269 (Admin), in which Moses LJ set out the correct approach to assessing cumulative effects. This approach was then arguably misapplied to the facts and the judicial review dismissed. Oldfield is now before the Court of Appeal and is likely to be heard some time in the autumn; permission to appeal being granted on 2 July 2014.

The fundamental error in the approach of using existing environmental circumstances as the baseline rather than part of the environmental harm has been repeated in recent decisions. In R (Harvey) v Central Bedfordshire Council [2014] EWHC 1536 (Admin), for instance, Mr Justice Lewis noted that “it is the extent of the environmental differences measured against the existing background that needs to be assessed”.

Further clarification is at hand. The EIA provisions have been overhauled by the European Union recently and a new EIA directive 2014/52/EU entered into force on 15 May 2014. While member states have until 15 May 2017 to implement the
new directive, it is clear as to what is intended
when carrying out EIA screening under annex 3.
The new provisions state that the criteria to determine whether a project listed in annex II should be subject to impact assessment are,
among other things, that:

• the characteristics of projects must be considered, with particular regard to...
• (b) cumulation with other existing and/or approved projects
• the environmental sensitivity of geographical areas likely to be affected by projects must be considered, with particular regard to: (a) the existing and approved land use... and
• the likely significant effects of projects on the environment must be considered in relation to criteria set out in points 1 and 2 of this annex, with regard to the impact of the project on the factors specified in article 3(1), taking into account: (g) the cumulation of the impact with the impact of other existing and/or approved projects...

EIA scoping

In terms of EIA scoping (i.e. the discussion as to the scope of the environmental statement (ES), which should be prepared as part of an EIA), the new directive provides at new annex IV that the ES should cover, among other things:

“5. A description of the likely significant effects
of the project on the environment resulting from, inter alia:... (e) the cumulation of effects with other existing and/or approved projects, taking into account any existing environmental problems relating to areas of particular environmental importance likely to be affected or the use of natural resources...”

The new EIA directive 2014/52/EU simply reaffirms the existing jurisprudence. If we are ever going to make meaningful improvements to our quality of life and halt the deterioration of some important aspects of our environment, we must acknowledge the existing harm whenever possible. This may mean that certain proposed developments fall within the scope of the
EIA provisions.

However, the fear of a possible ‘chilling effect’
to development coming forward, or that the cost of a discrete, focused environmental statement being prepared is prohibitive, is without foundation.

Moreover, EIA has always intended to ensure that those responsible for making decisions in the public interest do so with the best possible information to make fully informed decisions.

In an increasingly complex and populated society, a better understanding of the true environmental cost of development is essential. SJ

Dr Paul Stookes is a solicitor-advocate and partner at Richard Buxton Environmental and Public Law, and an accredited mediator. The firm represented the claimants in Baker, Harvey and Oldfield