(R77) CRYSTAL PALACE CAMPAIGN - IMMEDIATE MEDIA RELEASE - 28 January 2003

BROMLEY, UK GOVERNMENT TAKEN
TO EUROPEAN COURT FOR
ENVIRONMENT FAILURE AT CRYSTAL PALACE

The European Commission announced last Friday (Jan 24) that it was now taking the UK government to the European Court of Justice in Luxembourg over Bromley Council’s failure to require an Environmental Impact Assessment (EIA) prior to granting planning permission in 1998 for the massive Crystal Palace multiplex.

This is the final stage in the proceedings brought by the Brussels Commission against the UK authorities for infringement of the EIA directive which is binding in UK law. The Thatcher government incorporated the Directive into UK law, but it is the responses of three Labour Secretaries of State that have now been rejected by the Commission as unsatisfactory. If the Court finds for the Commission it could impose heavy fines – as in the case of France for disobeying the EC’s resumption of British beef exports – and would require new legislation to bring the UK into compliance. Bromley could be in the uncomfortable position of having triggered massive changes in the UK planning system.

The issues being referred cover two grounds, according to a January 14 letter from the EC’s Head of the Environment Directorate-Genera to the Crystal Palace Campaign which originated the case with a formal complaint to the EC three years ago.

First, is the UK authorities’ failure “to properly consider the need” for an EIA for the Crystal Palace project under the Directive 85/337/EEC – this, added a January 24 EC news release, “even though the project exceeded the threshold for assessment that is stipulated in the official UK screening guidelines”.

“Secondly, the case addresses the more general exclusion of reserved matters from the environmental assessment process even when these issues may be relevant to a decision as to whether the proposed project is likely to have significant effects on the environment.” The EC press release notes that “’reserved matters’ therefore appear to be excluded from the EIA procedure required by the Directive’”. Bromley, at the multiplex final “reserved matters” stage, rejected requests even from a few of its own councillors for an EIA even though the public had had no proper opportunity to comment on major changes before planning approval was finalised. The Crystal Palace Campaign whose Chairman, Philip Kolvin, is a planning barrister, has consistently argued that the UK system is defective, by providing for EIA only at the “outline” planning stage, often before the full detail of the scheme is known.

The decision further challenges Bromley Council's claim always to have acted within the law. It was they who in 1997 relied on consultants Chris Blandford Associates’ report that the multiplex – one of the largest in Europe -- was "unlikely to have significant environmental effects" and thus required no EIA from the developer.

Philip Kolvin said:

“This case is about democratic participation in planning decisions which affect the lives of ordinary people – something we thought the UK government supported. We’re sad matters have reached this stage, but are grateful to the European Commission for taking up the fight for the benefit of all UK citizens. We remain vigilant concerning the future of this historic site at Crystal Palace for which, working together with Bromley, we are now trying to reach a solution which will gain maximum acceptance by from local residents.”

Note to editors:
Attached is the letter from EC, and the relevant part of the EC news release which can be found at:
http://www.europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/03/117|0|RAPID&lg=EN&display=

EUROPEAN COMMISSION
DIRECTORATE-GENERAL
ENVIRONMENT
Directorate D - Implementation and enforcement ENV.D2 - Legal implementation and enforcement

Brussels, 14.01.2003
D(2003) ENV.D2/SG/sh/520118

Mr Philip Kolvin
Chairman
Crystal Palace Campaign
London SE24 9HZ
UNITED KINGDOM

Dear Mr Kolvin,

Subject: Complaint 99/4465 concerning Crystal Palace

Further to my letter of 21 November 2002, 1 would like to inform you that the Commission decided at its meeting in December 2002 to refer this matter to the European Court of Justice. The issues that are to be referred to the Court cover two grounds. Firstly, the failure of the United Kingdom authorities to properly consider the need for an environmental impact assessment under Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment with regard to the Crystal Palace redevelopment project. Secondly, the case addresses the more general exclusion of reserved matters from the environmental assessment process even when these issues may be relevant to a decision as to whether the proposed project is likely to have significant effects on the environment.

I will keep you informed of further developments. As the case has yet to be lodged with the Court, no formal Court reference number has yet been allocated.

Yours sincerely

George Kremlis
Head of Unit

Commission europ6enne, B-1 049 Bruxelles / Europese Commissie, B-1 049 Brussel - Belgium. Telephone: (32-2) 299 11 1 1. Office: BU-9 1/91. Telephone: direct line (32-2) 295.00.72. Fax: (32-2) 299.10.70.

United Kingdom

The Commission has decided to refer the UK to the Court of Justice, under Article 226 of the EC Treaty, for failing to carry out an environmental impact assessment on a project for a large multiplex cinema and leisure complex at Crystal Palace, London. The UK authorities failed to do so even though the project exceeded the threshold for assessment that is stipulated in the official UK screening guidelines. The Court referral also concerns the general question of how the UK applies the Directive to development consent procedures. Under UK legislation, matters can be "reserved" at the time of the initial development consent decision, to be considered at a later date. Those "reserved matters" therefore appear to be excluded from the EIA procedure required by the Directive.

In a separate case, the UK will be sent a Final Written Warning in relation to its system of allocating "certificates of lawful development" to projects like scrap-yards, which could be covered by the Directive. This certificate protects the operator from prosecution under the planning laws. Its effect is to exempt such projects from requiring planning permission and, therefore, from having to consider whether an EIA may be required. The Commission considers that the "certificate of lawful development" should be granted only if the rules with regard to EIAs are respected.

Background

The Environmental Impact Assessment Directive

The Directive(2) is an important part of EU environmental legislation. It requires Member States to carry out environmental impact assessments (EIA) on certain public and private projects, before they are authorised, where it is believed that the projects are likely to have a significant impact on the environment. For some projects (such as motorway construction) listed in an Annex I to the Directive, such assessments are obligatory. For others (such as urban development projects) listed in Annex II, Member States must operate a screening system to determine which projects require assessment. They can apply thresholds or criteria, carry out case-by-case examination or use a combination of these screening instruments, the aim being to ensure that all environmentally significant projects are assessed.

The objective of an EIA is to identify and describe the environmental impacts of projects and to assess whether prevention or mitigation is appropriate. During the EIA procedure, the public can provide input and express environmental concerns with regard to the project. The results of this consultation must be taken into account during the authorisation process.

The necessary national legislation should have been implemented by July 1988. An amendment to the Directive was adopted in 1997. While retaining the basic framework of the original Directive, the amendment reinforced many of the Directive's details. It made more projects subject to mandatory EIA, introduced more detailed criteria for deciding whether an EIA is necessary in other cases, required developers to provide information on possible alternatives examined, and required reasons to be given by the decision-maker even if the development consent was granted. Member States were required to adopt the necessary national legislation to take account of this amendment by March 1999.

Legal Process

Article 226 of the Treaty gives the Commission powers to take legal action against a Member State that is not respecting its obligations.

If the Commission considers that there may be an infringement of Community law that warrants the opening of an infringement procedure, it addresses a "Letter of Formal Notice" (or first written warning) to the Member State concerned, requesting it to submit its observations by a specified date, usually two months.

In the light of the reply or absence of a reply from the Member State concerned, the Commission may decide to address a "Reasoned Opinion" (or final written warning) to the Member State. This clearly and definitively sets out the reasons why it considers there to have been an infringement of Community law and calls upon the Member State to comply within a specified period, usually two months.

If the Member State fails to comply with the Reasoned Opinion, the Commission may decide to bring the case before the Court of Justice.

Article 228 of the Treaty gives the Commission power to act against a Member State that does not comply with a previous judgement of the European Court of Justice. The article also allows the Commission to ask the Court to impose a financial penalty on the Member State concerned.

For current statistics on infringements in general see: http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm#infractions

(1) Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna

(2) Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, amended by Directive 97/11/EC

Press Officer: Fred Emery 020 8761 0076 Mobile: 0794 117 202
All correspondence to: Hon Secretary, 33 HogarthCourt, Fountain Drive, London SE19 1U
E-mail: fred@syre.demon.co.uk Website: www.crystal.dircon.co.uk

7/8/02 Last updated 7/8/02