Environmental Impact Assessments

Legislation was introduced in 1999 which demands that Local Councils must consider the need for an Enviromental impact assessment for any facility larger than 0.5 hectares.

In fact it is clear from case law that they should also consider whether an Environmental Impact Assessment is required for facilities less than this size if it is clear there could be an impact on the local community.

What is an Environmental Impact Assessment?

Interestingly, the first stage of the Environmental Impact Assessment is to carry out what is described as a ‘screening and scoping’ exercise. This looks at the need for a full EIA.

A full EIA is an extremely expensive document to produce. Not only should odour and bioaerosol risks be considered (and in line with our odour and health sections we suggest that full quantitative assessments are required); bur also effects on flora and fauna, local archeological features, local water courses etc etc. If done properly they can cost £50,000.

Case Law

Fortunately, the need to carry out an EIA screening exercise has been tested very recently in the High court with a decision given on the 19th February 2009.

The residents of Publow in the case R Baker vs BANES & Hinton Organics, challenged the decision of their local authority, Bath and North East Somerset, to grant an extension of planning consent to a green waste composting facility on the grounds that the development had not been screened for an EIA and that the significant impact of odour and bioaerosols meant that full assessment via the EIA procedure was required.

The court has quashed the ammended permission (and a further 2 permissions varying conditions) due to lack of screening for an EIA.

This is the first public, knock out blow to composting. Importantly the Publow site is not a big one (operating under a license which allows 800 tonnes of composting material to be processed at any one time). However, there are occupied dwellings within 250m although the litigants live more than 300m from the site.

Many other local authorities have failed to screen and scope for and EIA at similar and larger facilities. Some have ‘screened and scoped’ and stated one is not necessary. It is going to be extremely difficult, if not impossible for the local council to the Publow residents to argue a full EIA is not necessary as there are further legal cases pending against

  • the operator, EA and BANES for odour nuisance; and
  • the EA and BANES for failing to monitor for bioaerosols.

A full copy of the written judgement can be seen here.

This decision has been coroborated by another case Birch vs Barnsley CC . This decision was challenged but supported by the Court of Appeal. Good news.

Who to contact if you are in a similar position.

If your Council has recently granted permission on a site without carrying out a screening and scoping exercise or indeed without a full EIA and you wish to discuss the position we recomend you contact the solicitor who is acting for the Publow Residents and Barnsley residents:

Paul Stookes,
Richard Buxton Environmental & Public Law,
19B Victoria Street,
Cambridge,CB! !JP
Tel 01223 328933

Why was the Publow decision not Appealed?

We always believed the Publow decision would be appealed as the Secretary of State and the Local Council defended the case in court with huge numbers of staff because of the implications for their recycling activities. In fact they finally chose not to.

The Secretary of State’s involvement in this case was worrying. The Govt seemed to be trying to prevent local authorities having to assess the risks on these green waste facilities prior to consent being granted. This was challenged in a letter sent out to MPs by residents groups.

A reply was recieved by Baroness Andrews on behalf of the Secretary of State. She continued to (digracefully) argue that residents can take legal action if problems arise in the full knowledge that this is prohibitive to many people. Hopefully a change in Govt and the second successful challenge in the courts by the Barnsley residents will temper this approach.