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Developers on the defensive

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With challenges to planning decisions rising, clients should regard an environmental statement as a form of insurance

When the European directive on environmental impact assessments (EIAs) came into force in 1988 the government expected it to give rise to about a dozen mandatory statements a year in planning applications.

In practice, over the past decade the number has run at around 300 annually.

Two classes of project are defined for the EIA treatment by Annex I and Annex II of European directive 85/337/EC. Classes of project defined in Annex I include such things as overhead power lines, quarries and waste incinerators. It is Annex II projects which are more likely to be of interest to architects and their clients. These require assessment if they are deemed to be likely to have 'significant' environmental effects and include projects as diverse as theme parks and wind farms.

The requirements are now implemented through the Town and Country Planning (Assessment of Environmental Effects) Regulations which came into force in March 1999. The Environmental Impact Assessment (Scotland) Regulations 1999 came into effect last August.

The regulations indicate thresholds above which Annex II developments are likely to require an EIA.Examples are urban development projects such as shopping centres, leisure centres and multiplex cinemas with a site area of more than 0.5ha, and golf courses and caravan sites covering more than 1ha. In practice it is up to the local planning authority to decide on a case by case basis whether an application falls within the schedule to the regulations and whether it has significant environmental effects under the terms of the legislation.

Ministers are now getting involved in arguments about whether an assessment is needed in particular cases.Most prominent is Foster's Baltic Exchange project in the City of London where the planning authority decided an assessment was unnecessary but the Secretary of State called it in and decided otherwise. The Welsh Office last year backed the planning authority in insisting that the Welsh Rugby Union should produce an environmental statement for its Centre of Excellence project at Caerleon.

The courts are involved too. A High Court judge quashed a planning permission for an access road in Bury St Edmunds after concluding that council officers acted unlawfully when they decided, without specific delegated authority, that no assessment was necessary for the scheme.

DETR Circular 2/99: Environmental Impact Assessment says: 'If a developer fails to provide enough information to complete the environmental statement, the application can be determined only by a refusal'. Architects should note that applicants now have the option of asking councils to give an opinion on what matters an assessment should cover. It would be prudent for architects to confirm that the planning officers have the delegated authority to express an opinion.

The High Court has also addressed the question of how much information such statements should contain. It quashed an outline planning permission for a business park in Rochdale on the grounds that the statement, which was based on an illustrative masterplan, did not provide enough information to allow a proper assessment to be made of its effects. For reasons such as these, the property sector is increasingly concerned that these regulations might hold back major developments.

Challenges by a judicial review oflocal planning authority and planning appeal decisions are becoming more frequent, particularly those initiated by third parties.

In the last few months the courts have considered and rejected such challenges to planning consents for the White City Mall in Hammersmith, west London, the multiplex cinema proposed in Crystal Palace Park, south London, and the extension to East Midlands International airport in Leicestershire.

More such challenges may be expected, and the stakes are being raised by UK enactment of the European Human Rights Convention this month. Thereafter the European directive on strategic environmental assessment is expected to require local authorities and other service providers to appraise the environmental consequences of their strategies and programmes and incorporate them as part of the plan preparation process. Meanwhile, promoters of major projects are increasingly producing their own appraisals to support applications.

Hopefully in the future, having explored the environmental consequences of their planning strategies, councils might make the need for project-related environmental statements redundant.

Meanwhile, as the Foster 'gherkin' case suggests, architects need to be aware of the regulations and their possible interpretations. Either way, the client may on occasion consider the investment in a precautionary EIA to be a wise form of insurance.

Brian Waters is principal of the Boisot Waters Cohen Partnership, tel 020 7828 6555, e-mail brian@bwcp.co.uk.

The documents referred to are available from the Stationery Office, tel 0970 600 5522. Scottish Regulations 1999 available from 0131 228 4181

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