Stephen Battersby
The United Kingdom, as a member of the European Community, will be obliged to implement Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment by July 3 1988. That is only a few months away, but there is as yet no clear indication of which developments in the UK will require formal “environmental impact assessment” (EIA). Further, there are many developers and others within the property world who have not even heard of EIA.
The term “developers” used here has the same meaning as in the directive, that is “the applicant for authorisation for a private project or the public authority which initiates a project”. What is currently understood in the UK is that the original intention to apply the terms of the directive to only a limited number of mandatory developments has been amended under pressure from the European Commission, and that implementation will be linked to the planning system. This means that EIA will apply to many more projects than originally envisaged, and implementation will be achieved as far as possible using the existing provision of the Town and Country Planning Acts.
What is the scope of this directive, and why should developers be concerned? The essential elements can be stated relatively simply, although the actual directive is not so easily understood:
(1) an assessment is to be made of the effects of certain development projects on the environment before development consent is given;
(2) the developer must contribute to this assessment by supplying and making public certain information;
(3) the public, and those authorities with specific environmental responsibilities likely to be concerned are to be consulted in advance, and the views put forward considered;
(4) once the decision is taken by the competent authority (the planning authority in the UK) its content and any conditions have to be made public.
The assessment is not wholly the responsibility of the developer but the information provided is an important part of the EIA process. The information to be provided by the developer is specified in some detail and further comment is made on this below.
It is first more appropriate to look at the sort of projects to be affected, which are listed in two annexes to the directive. The first includes those projects which are always going to have “significant effects on the environment by virtue inter alia of their nature, size or location” and therefore will always be subject to an assessment. The second is of those projects where the member states have discretion to decide whether the characteristics of the project are such that there will be significant effects and therefore require assessment.
The current difficulty facing the Government appears to be how to decide which of these developments will have significant effects and what criteria or thresholds to use. Certainly some agricultural and forestry developments have significant effects on the environment but there is a need for criteria and thresholds to decide what kind of forestry and agricultural developments should be brought within the scope of the directive. Other developments, eg power stations and motorways, are approved under separate legislation and the Government has yet to explain how these are to be dealt with.
The first list (Annex I) includes projects under the following headings:
crude oil refineries
thermal power stations and other combustion installations with a heat output of 300 megawatts and nuclear power stations and other nuclear installations
installations for the permanent storage of final disposal of radioactive waste
integrated works for melting cast iron and steel
installations for the extraction and processing of asbestos
integrated chemical works
construction of motorways, express roads and long distance railways
trading ports and inland waterways
waste disposal installations for the incineration, chemical treatment or land fill of toxic and dangerous wastes.
The Annex II projects fall into the following categories:
agriculture (including land reclamation from the sea)
extractive industry (including petroleum and natural gas, coke ovens and cement manufacture)
energy industry
processing of metals
glass manufacture
chemical industry
food industry
textile, leather wood and paper industries
rubber industry
infrastructure projects (including industrial estate development projects, urban developments, pipelines, yacht marinas, tramways and elevated railways, construction of roads and airfields not included in Annex I)
other projects such as holiday villages, hotel complexes, installations for waste disposal not included in Annex I, and waste water treatment plants.
modifications to Annex I projects.
The full list can be read in the text of the directive, but from the above lists it can be seen that the process of environmental assessment will apply to a large number of commercial development projects. It may not be clear just how some of the terms in the directive will be interpreted, but such schemes as the Docklands Light Railway and many other developments in Docklands would come within the terms of the directive. Here is another complication; in the areas covered by the UDCs the normal planning system does not apply.
Just whether out-of-town shopping complexes will be considered as “urban development projects” or whether speculative office and factory developments will be included in that same heading remains to be seen (speculative industrial estate developments clearly do fall within Annex II). Of course the thresholds/criteria for deciding which of these developments would be subject to EIA still have to be made known. Nevertheless many of these projects can have significant environmental impacts, and to exclude them would be a failure to use the system as a way of improving environmental protection. In France, as an example, where an EIA system has been in operation for 10 years, there are approximately 5,000 EIAs per year, and the process is not considered to slow down the approval process.
EIAs identify, describe and assess the direct and indirect effects of the projects on the following factors:
human beings, flora and fauna
soil, water, air, climate and landscape
the interaction between the above factors
material assets and the cultural heritage.
The information which the developer will have to provide where an EAI is required is specified in another annex to the directive and can be summarised as follows:
(1) description of the project
(2) outline of the main alternatives
(3) aspects of the environment likely to be significantly affected
(4) a description(*) of the likely significant effects of the proposed project on the environment
(5) a description of the mitigatory measures envisaged
(6) a non-technical summary of the information provided
(7) an indication of any difficulties encountered in compiling the required information.
In the consultation document and draft information booklet for developers issued by the Department of the Environment in 1986, it was clear that the intent was to comply fully with terms of the directive. It stated “there is no prescribed form of assessment report, provided that the requirements of Article 3 and Annex III (summarised above) of the directive are met. The aim should be to provide as objective a statement of the environmental effects of the project as possible”.
All this might seem to be increasing the bureaucracy involved in gaining planning approval for developments and be placing additional burdens on developers. However, experience in the USA and France — and indeed in this country where EIAs have been undertaken — shows that this is not so. Many developers now see EIA as a sound management tool. It certainly is becoming an important preventive tool with regard to environmental damage. EIA aids decision-making and beneficially shapes development activities from planning through construction and operation.
It is argued that evaluation will encourage developers, both public and private, to think critically about the social, ecological, and public health implications of their plans before making expensive decisions which are difficult to change regarding siting, scale of operation, choice of technology and raw materials and other critical factors. It might well reduce the need for expensive public inquiries. Without doubt, experience shows that EIA can prevent expensive blunders. The challenge to developers is to enter into the new system positively and in the right spirit, for EIA is something more than just formalising existing practice.
(*) The description in (4) should, according to the directive, cover “the direct effects and any indirect, secondary, cumulative, short-, medium- and long-term, permanent and temporary, positive and negative effects of the project”.
