In 1988, the European Community introduced a directive on EIA to ensure that the environmental effects of projects are properly examined before consent is given to the developer to proceed. It is also intended to give the individual citizen an informed say on the proposals. The directive was clarified and improved by amendments which came into effect in 1999. To use the amended directive's own words, the EIA directive is a fundamental instrument of Community environmental policy.
The UK originally thought that the directive would have little impact on the existing planning system, only applying to a few major projects. The European Court of Justice, however, has consistently interpreted the directive as having a "wide scope and broad purpose", and offering member states very limited discretion in its implementation.
Our first involvement with the directive was in 1990, when Richard Buxton (then working with Mills & Reeve) acted for the RSPB in challenging a failure to have it in relation to a port development at Lappel Bank, Isle of Sheppey. More details on this dispute, which developed later into a landmark decision in relation to the EU Birds Directive, are on the Lappel Bank link. We lost - on this point, because the judge held, wrongly in the light of later decisions by the ECJ, that the local authority had a discretion in applying the directive to the project in question.
During the years since, we have been involved with many, indeed most, of the EIA-related cases. Full details are in individual transcripts. Most notable cases are the House of Lords decisions in Preston-under-Scar in (1999) and Berkeley (2000) and that of the European Court of Justice in Wells (2004). At the time of writing (2005) a landmark decision of the ECJ is awaited in Barker/Crystal Palace. The Court of Appeal has given notable rulings in Huddleston and Goodman. Other cases where EIA has played a greater or lesser part include Walton, Berkeley No2, Bell, Lowther, Edwards, London CPRE (White City), Sywell, Marson, Moses, and Hardy. In Scotland, we have been involved in Glendye and Greenlaw. Some are still subject to appeal and or consideration by the European Commission. Overall we believe that our cases have made the law significantly more effective than it was, originally poorly implemented (and perhaps intended as such) by the UK government. The domestic courts have generally been conservative and there have been setbacks, but experience has been largely positive, both for the law generally and the circumstances of the particular case.
EIA is not intended to prevent developments, but as a tool to see that they are assessed and planned properly at an early stage. Lack of EIA may have no effect on the acceptability of development. However it often turns out to be the case that the unlawful lack of one indicates a substantive problem. Our work in EIA cases has led to extensive involvement in planning work generally. Decisions may be unlawful for reasons besides EIA problems.
One area of law where we have been in the forefront of development relates to the extent local authorities are required to give reasons for their decisions. (See Wall and Chisnell decisions). We are not the right firm to go to if you want to organise a big development. However even developers have asked us for help dealing with difficulties in approaching environmental matters and procedural unfairness they may face.
