(P158) Law - Times Online - May 09, 2006

Landmark environmental decision gives property developers 'headache'

By Michael Herman

Property developers in the UK could face tighter environmental restrictions and more red tape following a landmark ruling at the European Court of Justice.

In a ruling handed down last Thursday that has been kept quiet until now, the ECJ said a London borough had violated the European law by failing to require a property developer to conduct an environmental impact assessment.    

Under current British law, such assessments &emdash; which evaluate the impact a proposed property development is likely to have on noise, traffic and pollution levels &emdash; are only required at the planning stage of a development. Environmentalists argue that this is unfair because local planning authorities do not possess all the facts at the planning stage, which could lead them to decide against assessing a project that may have the potential for significant environmental impact.

Philip Kolvin, a planning barrister involved with the case, said British planning laws would have to change as a result of the ruling. "Lawyers will have to work out how and when, but it's going to happen," he said.

The ruling would benefit "communities the length and breadth of the nation" by protecting them against "inappropriate, insensitive development".   

In 1999, the London Borough of Bromley gave final planning permission for a multi-screen cinema complex in Crystal Palace Park without carrying out an initial assessment, despite arguments from some councillors that the development could cause environmental damage.

The development was abandoned in 2001 but not before the Crystal Palace Campaign, a local protest group, took the Borough to the European courts. On Thursday, the court ruled the Borough had breached a 1997 directive that says permission for developments that are likely to have significant environmental impact cannot be granted without an assessment. 

Mr Kolvin, a former chairman of the Crystal Palace Campaign, said the laws at present gave property developers too much power. "They get a blank cheque because the planning authorities have no [ability] to demand that a development be environmentally assessed at the later stages."

A developer could get away with increasing the size or changing the nature of its project after the planning stages without being compelled to reassess the environmental impact.

Mr Kolvin conceded the change would be a "headache" for property developers but insisted it was the only fair course of action.

Others are less convinced. Tony Kitson, a planning specialist at CMS Cameron McKenna, said: "This is one more example of procedural obstacles being placed in front of property developers which are bound to slow the development process down and give rise to further objections from people who are opposed to the plans in principle.

"The environmental assessment process is becoming increasingly complicated and this will make it even slower and more difficult for developers. The merits of applications tend to become incidental as people are increasingly using procedures to thwart developments they don't like."

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10/5/06 Last Updated 10/5/06