The green choke-chain

Since the CDM Regulations came into effect in 1994, designers have had a duty to gaze into the future and foresee the health and safety implications of their work. If they haven’t, or they get it wrong, they may face prosecution. Meanwhile, “planning supervisors” take fees for the job of warning everyone else about the imponderables of CDM.

This is going to seem like a cosy world of legal certainty compared with the forthcoming decade of environmental liability that presently faces us.

The key development is directive 2004/35/CE: “environmental liability with regard to the prevention and remedying of environmental damage”. This was brought into force by the European parliament and council on 21 April this year. After a round of “inclusive” public consultation to elaborate proposals and draft legislation, which should last up to the summer of 2006, it will be incorporated into English common, civil and possibly criminal law in 2007.

That process will give lawyers, judges and non-governmental organisations far-reaching powers to promote environmental (and animal) protection, and activists will enjoy representation in public hearings.

These rules will mesh with the aims of the United Nations Environment Programme, which are considerable. A UNEP plan to develop, use and enforce international regimes of environmental liability was drawn up by more than 100 of the world’s most senior judges attending the Global Judges Symposium at the World Summit on Sustainable Development in Johannesburg, 18-20 August 2002. There, the judges reiterated the pledge made by world leaders in the Millennium Declaration at the UN General Assembly in September 2000: “To spare no effort to free all of humanity, and above all our children and grandchildren, from the threat of living on a planet irredeemably spoilt by human activities.”

As a direct result of the WSSD, the European Union Forum of Judges for the Environment was created at the European Court of Justice in Luxembourg on 26 April 2004, charged with overseeing 2004/35/CE.

When accused, designers will need to prove they have not spoiled the planet or threatened the unborn

Pretty soon, unsustainable development, will be a breach of the EU constitution and an offence. When accused, designers will need to prove they have not spoiled the planet or threatened the unborn, and they will be represented in court by some kind of “sustainability-supervisor”. As with CDM, there will be show trials, but “I was only satisfying my client’s brief” will not stand as mitigation.

Defence will not be easy, because environmental liability will stretch the test of reasonable foresight to the verge of clairvoyance. But the attempt to avoid being sued will have its price too, and it will be mundane and onerous:

• Professional indemnity insurers will require “sustainability indicators” from all construction quangos.
• Judgments will be scrutinised for the smallest ruling on what is considered unsustainable.
• There will be frustrated calls for a prescriptive code for sustainable buildings when developing “sustainable communities”.
• If there is a failure to reach cross-industry consensus on robust standard details, risk assessments will encourage more risk-free design.
• New materials and products will tend to be avoided, even if endorsed by environmentalists.
• As with CDM, environmental liability will dull the architectural senses through the review committee process.

That will be the start. Auditing to ensure that procedures have been followed will be a big business. And consultants may find they face the constant threat of prosecution for failing to apply the highest environmental standards, tackle climate change, or achieve quality design for “communities”. Consultants may soon find that maintaining their innocence of unsustainable development has taken over from doing architecture and staying in business.

Ian Abley is an architect at www.audacity.org and co-author of Why is Construction So Backward?