An EIA was prepared for earlier proposals for mixed housing and industrial development, an ES was prepared for that proposed development, but the application was withdrawn before final consideration by the planning committee.

Bolton MBC undertook a screening opinion in relation to the present application. The screening opinion notice states that the reason that the planning authority did not consider the development was an EIA development was that it was less than 20 hectares, and it was not likely to have a significant effect upon the environment, the land being poor quality agricultural land. The question has to be asked, whether on the face of the known facts a competent local authority, acting in the full knowledge of the application before them, correctly applying the regulations could come to conclusion that the development was not EIA development.

It would appear that on the face of the known facts the planning authority gave considerable weight to the fact that an earlier ES had been carried out, this has a number of problems associated with it. Those relating to the housing element have already been put in my letter to the Secretary of State dated the 8^th February 2000. We do though need to consider these points and to expand upon them in the context of the industrial element of that ES. The regulations make it clear that in consideration of the merits of an EIA, it is what is before the decision-maker that is important. DETR Cir 2/99 paragraph 45 sets this rational out: - "In general, each application (or request for an opinion) should be considered for EIA on its merits. The development should be judged on the basis of what is proposed by the developer".

This show that the earlier EIA was of little help, whilst it gives an indication of some of the problems that might be associated with the development, it does not give the basic details as required by the Directive and Regulations. There is no real consideration of the design and layout. These are not add on extras to be considered if it so chooses the developer to flag them up, but distinct obligations. But in any event the original ES was under the 1988 regime not the present Regulations, which are more robust and take into account changing understandings of the adverse effects on the environment and human health of developments.

The other consideration in this respect is that if it was not for the earlier ES would this development have been declared an EIA development. If the answer were yes, then the public would have had the right to comment, and those comments to form part of the decision-making process. The shadowing of the mind of the Bolton decision-maker by the earlier development has prevented a proper consideration by Bolton of the merits of this development as it now stands.

We are not aware of any application to amend the planning application, therefore we find it strange that the LA conclude that the development is less than 20 hectares when in fact the application states that the size of the site is 22.4 hectares. The development fits the description contained in para 10a of Schedule 2 of the 1999 Regs It also fits the special consideration of size as pointed to in the context of indicative thresholds found at A17 of Annex A to Cir 02/99, being an industrial development greater than 20 hectares.

It the DETR guidance document on the assessment of EIA it states under the heading 'Indicative Thresholds For Schedule 2 Developments' at bullet point 4 "Industrial estate developments may well require EA where the site area of the estate is in excess of 20ha or where there are significant numbers of dwellings in close proximity to site of the proposed estate, e.g. more than 1000 dwellings within 200m of the site boundaries. Smaller estates may exceptionally require EA in sensitive rural or urban areas, particularly if associated with other Schedule 2 works">.

Circular 02/99 para 18 states: "Developments of a type listed in Schedule 2 to the Regulations which:

1. meets one of the relevant criteria or exceeds one of the relevant thresholds listed in the second column of the table in Schedule 2; or
2. is located in a 'sensitive area', as defined in regulation 2(1);

is referred to in this Circular as 'Schedule 2 development'.

Pretty strong guidelines on the type of development that must be designated as Schedule 2 development. Albeit that we need to go further before coming to the conclusion that the development is an EIA development.

The fact that 2.4 hectares is to be used for replacement recreational facilities is irrelevant, what is relevant is the effects on the whole site including that 2.4 hectares. Which includes ponds and other features of high ecological value, the effect upon this section of the site from the relocation of features from the rest of the site can and do form a material consideration in any screening application. We contend that Bolton were wrong in law in finding that the development was less than 20 hectares. It simply being a question of fact whether the application before the Inspection is one of 22.4 or 20 hectares

Bolton in their decision appear on the face of the decision letter to have taken the 20 hectare threshold as an absolute limit, whereas Cir 02/99 Annex A which lists the thresholds is entitled 'indicative thresholds'. This clear the thresholds are merely an indication of the starting point, going on to say that in most cases where the thresholds are exceeded then the development would be an EIA development, but that simply because the development was below the threshold would not exclude it from being an EIA development.

In the EC Judgment The Commission v Ireland Case No. C-392/96 it sets this out clearly. Albeit this is a case that involves the way in which Ireland set its national Regulations too rigidly, in that it had set a threshold of 70 hectares for afforestation projects, where above the threshold an ES was required but not below it. The similarity to the instant case is in the way Bolton appears to have said that the 20 hectares threshold was a complete bar to an EIA (unless there was other criteria). The correct course would be to first look at the size of the project, establish if it exceeds the threshold, if it does, then the development is declared an EIA development. If it falls below the threshold then there has to be other reasons why the development should be classified an EIA development. I will return to that point later, for now I will stay with the size issue.

(Turn to paras 73 to 78 of the Ireland case)

When considering a development whether it is on size or any other criteria, we need to look at the cumulative effect of all developments directly or indirectly affecting the development. In the Ireland case it puts it across as several application of different applicants all for 70 hectares (para 79), which under the Ireland Regulations would be quite acceptable without any EIA. But the Court ruled this to be unlawful. They stated that the development must be taken as a whole with other proposed or known developments taken into account. The withdrawn housing application, is such a development, which was to all intents and purposes withdrawn simply to short circuit the problems that were encountered from the EIA for the combined housing industrial development. Without the housing there was a good chance that the industrial development would be approved without the need for an EIA as would any subsequent housing application. As the land is still allocated for housing, and the developer has not attached any conditions to the present applications that the other land will not be the subject of a future application for housing. The development must be taken to include all potential future development proposals that would have a cumulative effect.

Taking this one stage further I point to the A5225. The Developers base part of their case on the fact that the development will in effect provide a section of the A5225. It is right and proper then that the effects of the A5225 should be taken into account, taken with the proposed development the A5225 will have a cumulative effect. The construction of this section of the A5225 before any formal application is submitted and considered by a public inquiry into that road, will deprive consideration of the merits of the whole route any such inquiry. Even though the A5225 has already been through a public Inquiry, but this was as a whole, and not in an ad hoc fashion, as is being now proposed, and not under the present more robust regulations, and understanding of the environmental consequences of a development.

We then have the effects of other proposed developments in the area and the cumulative effects of those developments on the environment and the road network, in particular I would refer to the proposals already approved in outline by Wigan into 9.5 hectares of housing at Belvedere Farm, Hindley Green. That is without other sites flagged up for potential development both within Bolton and Wigan that have the potential for creating a cumulative effect with the present site on the environment, wildlife, air quality and so forth. All of this needs to be considered in the ES.

When turning to other features of the site, we start to see the beefing up of the argument in favour of an ES. The site borders a wildlife corridor, which while not a statutory designation nevertheless has special mention within much of present and proposed government guidance, as well as being included within the Bolton wildlife strategy. In addition to this we see 3 other wildlife corridors reaching into the area surrounding the development site. While close to the site is a Wigan designated Green Belt.

English Nature in defence of the argument for Wildlife Corridors state:

1. Corridors should be preserved, enhanced and provided, where this can be cost-effective, as they do permit certain species to thrive where they otherwise would not;
2. Corridors should be as wide and continuous as possible; and
3. Their habitat should match the requirements of the largest species.

The site is known to be frequented by Badgers, ponds on the site have been identified as habitats for Great Crested Newts. We have then, a wildlife corridor that opens into an area of natural landscape, where a wide variety of fauna and flora flourish. In additional to this the site has local amenity value, for both sports and recreation.

Schedule 3 requirements in relation to the Lee Hall site.

1: Characteristics of development

The characteristics of development must be considered having regard, in particular, to -

1. the size of the development;
   
   The size of the developments is greater than 20 hectares (22.4ha), but even without the area that is to be set aside for the nature preserve and recreation area the site still comes close to the required 20 hectares. But in any event the mere fact that the development is actually 20 hectares, or even below 20 hectares does not of its self exclude the development from the rigours of the Regulations.
2. The cumulation with other development;
   
   The site is known to be part of a larger site that the landowner wishes to develop. Witness recent planning applications on the site for a residential development of 1100 homes. The developers themselves hint that the development could benefit from the potential approval of the A5225. Which of course would require an ES, and would lead to the area being 'opened-up' for development, which we have already gone into in detail.
3. The use of natural resources;
   
   Any development of this size and nature will use considerable natural resources in its construction. However as the development is for B2 development there is the real likelihood that part, if not all, the development site could be used for developments which would consume large quantities of natural resources.
4. The production of waste;
   
   No comment can be made on this until we know what type of units will occupy the site, B2 covers a wide range of industrial developments, some of which could be associated with the production of waste. We simply do not know because the development is an outline development, I might add here that it is doubtful if even the developer knows at this stage of the development, as he will have let few if any of the units
5. Pollution and nuisances;

The pollution of watercourses is of particular concern to this sites as a consequence of the large number of springs and other waterways that act as feeders to places such as Pennington Flash and the watercourse in Lee Hall Bank SBI. The developers own consultant states in his report "The current quality of this watercourse will need to be protected both during construction and through the life of any development". The area of the site is within the catchment area for the Mersey Basin, which already has major pollution problems, any further pollution would seriously damage the planned recovery of the Mersey Basin.

Issues relating to industrial and road related pollution, can only properly be taken into account after being subjected to the rigours of an ES, top of the list of industrial developments subject to ES are those above 20 hectares. One of the reasons behind this is because of the potential high risk from pollution generated from large developments, both during and after construction. Add to that the problems associated with sites that are riddled with watercourses, and the ease with which water borne pollutants can be distributed over a wide area. It becomes clear that the site needs greater consideration, through the medium of an ES before being developed.

A report by the developers consultant on air quality Dr Duncan Laxens produced in 1998 states: 'Potentially sensitive locations are those places where members of the public may be regularly exposed to higher concentrations for significant periods of time. Junctions are especially important, as emissions are greater due to slower moving traffic and the proximity of two or more roads'. This is well accepted criteria for road related air pollution, however the picture does not end there, those travelling in cars are likely to suffer greater levels of pollution than those walking or living close to major sources, due to the confined space of motor vehicles. However these pollutants are dispersed when driving at normal speeds, but in slow moving or stationary vehicles there is a build up of pollutants. This has a real adverse effect for motorist's health whenever there is a major source of traffic congestion. The proposed development will produce tailbacks on several roads, especially those already congested such as Park Road, Leigh Road, Bolton Road and Wigan Road.

Another problem for road related pollution in this specific area is the historic association with mining. There are a large number of elderly workers who are more susceptible to any increase in pollution than the national average, therefore greater consideration must be given to road related pollution, and the effect upon this specific group of people.

The next criteria given in the Bolton Screening Notice is that the site is not likely to have significant effects on the environment as it is low quality agricultural land. Whilst domestic regulations refer to the potential to develop low-grade agricultural land, it is not in the context of a free for all, it simply does not have the same degree of consideration as higher-grade land. But simply to say that the site is NOT LIKELY to have significant effects on the environment is insufficient reason. What of Air Pollution, Geology, Archaeology, Transport Issues, Fauna & Flora. The quality of the land is simply one of many considerations.

The developers admit that the site is a 'greenfield/ site, as opposed to 'brownfield'. There is no known past industrial usage of the site. The site has always been used for a mixture of agriculture and recreation/amenity use. It is factually wrong to state that the land is low quality agricultural land part of the site is sports pitches, which require relocation.

The Submission Statement submitted by the developers for the mixed use application states in its opening chapter on the site description at 1.3 that there is a risk of subsidence, mine gas and groundwater contamination

I would also question the validity of the form used for the screening process which seems to imply that only criteria 1,5,6,7 should automatically make the development EIA development, when in reality the EC Directive and Government Guidance is clear that 4 (the size of the site) must be given considerable weight.

For these reasons the proposed development should be designated an EIA development. My clients submit that the Screening Opinion of Bolton was unlawful, that this development should be classified an EIA development, and as such the matter should be remitted to the Secretary of State with a view to him giving a Screening Direction.