The construction industry, too, can trace a pretty sizeable paper trail of directives back to Brussels. This month, Edinburgh City Council had to put a planning inquiry on indefinite hold as a result of fears that it would be challenged under the Human Rights Act. Earlier this summer, Westminster council's £50m redevelopment of Pimlico School was thrown into doubt after Brussels ruled that it had contravened European Union public procurement rules.
Graham Watts, chief executive of the Construction Industry Council, says: "The impact of European legislation is quite significant. Often the directives are unnecessary and it can take a lot of hard work to convince European civil servants that their ideas are problematic. But on a practical level it's probably not as big a problem as we like to make out. The UK's main difficulties are often created by our own government. We seem to tie ourselves up in a lot of red tape."
Sarah Lambert, the European Commission's spokeswoman for the internal market, claims that Brussels' aim is to reduce bureaucracy, not increase it: "There is inevitably some level of administration, but we want red tape to be abolished. We are not trying to interfere with what countries are doing – we're just here to make sure there are no barriers to trade."
Most European legislation falls into two categories. First, there regulations intended to cut construction site deaths, protect the environment and uphold human rights. Then there are directives designed to open up a free market and create a level economic and social playing-field across member countries.
Professional bodies are waking up to the threats and opportunities offered by Europe. The RIBA announced in August that it is setting up an "intergroup" of MEPs to push the case for architecture and design the European Parliament.
If companies can see their way to cut through the red tape, in many cases the legislation could open up opportunities. Perhaps the best thing is to look on Brussels' regulations as being a bit like Brussels sprouts – we don't like them but we know that in the long run, they're probably good for us.
The question is, how do the rules affect you, and do they work?
Human rights act could complicate planning
On 2 October, the Human Rights Act came into force in the UK, allowing people to take their grievances to UK courts rather than trekking all the way to the European Court of Human Rights in Strasbourg. Many are worried that this could lead to a flood of legal challenges affecting planning applications and controls.
Ian Macpherson, the European adviser to the Institute of Building Control, says: "This greatly enhances people's ability to take action. At the same time the legal world is making itself more available by advertising 'no win, no fee' cases. There is going to be a stream of cases, and how it all settles down remains to be seen." Scottish planning authorities are ahead of the rest of the UK, as Human Rights Act was incorporated in Scottish law in May. This month, Edinburgh City Council stopped a planning inquiry into the rural west Edinburgh project before it was forced to do so by developers. The council was worried that it would be a waste of money even to begin the inquiry, as it involved green-belt land and is particularly likely to be challenged. The council could be open to claims from other developers that it had not held a "fair hearing" under article 6 of the act.
The first English test case is also now under way. Local residents in Huntingdonshire are claiming that the secretary of state will not be able to act impartially when he considers Alconbury Developments' plans to redevelop a former RAF site. Like the Scottish case, the argument is that the inspector presiding over the planning inquiry is appointed by the adjudicator – the secretary of state. Objectors also argue that the government will benefit from the development financially, as the land would be leased from the Ministry of Defence. Alconbury Developments has now taken the case to the High Court to decide if the human rights challenge is valid.
Urban development could also be challenged by article 8 – the right to respect for private and family life. People who face losing their homes to local authority compulsory purchase orders could use the act to defend their property.
Environmental rules may hit design
The biggest area of legislation affecting the design stage of a project concerns environmental impact assessments, or EIAs, which even managed to delay the approval of the 41-storey Swiss Re building earlier this summer. Deputy prime minister John Prescott eventually approved Lord Foster's "erotic gherkin" after originally ordering that an EIA be carried out.
Environmental assessments were introduced into UK law in July 1988 (under laws such as the Town and Country Planning Act). EIAs apply to public and private projects that "are likely to have a significant effect on the environment". Once a developer has submitted an environmental statement, the relevant authority has to weigh up the impact against the economic, social or public benefits of the project.
Alan Bond, lecturer at the University of Wales' EIA unit, believes the construction industry's reaction to EIAs has mellowed over the years. "In the early days they were seen as a burden, but, as the years have gone by, many firms have seen them as a good idea in terms of public relations. Designers can identify issues and make changes before planning permission is obtained, so it can be seen as quite an efficient process."
Safety: Legislating for common sense
Health and safety is the area that wins the prize for most EU-derived legislation. In September, the European Agency for Safety and Health reported back on its first pilot study into occupational health and safety across the EU. Construction was, unsurprisingly, among the worst performers, scoring in 10 out of 20 categories of "exposures to risk".
Currently, the number of European regulations affecting construction health and safety is estimated by the Health and Safety Executive to be more than six, with the Temporary Working at Heights Directive under negotiation. This would incorporate extra safety measures for anybody using apparatus such as scaffolding or ladders. The current laws include Construction (Design Management) Regulations, Workplace Regulations, and Fire Precautions (Workplace) Regulations. Add to these laws concerning personal protective equipment, lifting and noise. Companies must also remember the Working Time Directive, which limits the working week to 48 hours unless workers agree to opt out of this requirement.
A spokesman for the HSE, explains: "European law affects us quite considerably. But we're not being dictated to – the UK government is very involved in the process. However, I think awareness of the regulations on site is very low. What I've found is that if people are using common sense, they tend to be complying." European adviser Macpherson adds: "CDM regulations are seen as a bureaucratic on-cost by most in the industry. They were supposed to have reduced site accidents but they haven't. These laws are a burden but I think we would have got them eventually anyway."
Procurement regs could spell trouble
Public procurement rules are supposed to ensure value for money in publicly funded projects, and to give companies in all member states an equal chance to get work. But, as Sarah Lambert, the European Commission's spokeswoman on the single market, admits: "Public procurement has been a very difficult area to open up. Businesses are still not really operating across borders."
According to the European Committee for Standardisation, only 4% of construction work is international. Under the current directive, public bodies and utilities wanting to carry out projects worth more than 5.3m euros (about £3.8m) have to advertise them in the European Union's Official Journal.
Despite widespread cynicism about the effectiveness of the rules, the commission will investigate complaints of unfair contract awards. It intervened earlier this summer on Westminster council's plans for a private finance initiative redevelopment of Pimlico school, after a local resident tipped off Brussels that the procurement procedure broke European rules. If the council is found guilty, it may have to re-tender the project. The Dutch landscape architect Adriaan Geuze, of West 8, is also having to retender for the contract to design the Jubilee Gardens on London's South Bank after the size of the project was increased, pushing it over the £3.8m threshold.
David Marks, a partner in solicitor CMS Cameron McKenna, is worried that the rules' rigidity may prevent them from working properly. "In most situations, authorities can't negotiate with firms about the tender. This means they can't suggest ways to improve bids and perhaps get the best contractors for the best prices."
Marks adds: "Generally, foreign firms aren't interested in UK jobs. It only seems to be in very big projects that this legislation comes into play. And a lot of the time, large foreign firms will simply forge a joint venture with a UK firm. So in many ways the legislation has changed very little."
Changes are now being made to give the regulations greater legal clarity, to help smaller companies compete electronically and make the whole process more transparent.
Moving slowly to harmonise standards
After a painfully slow start in the construction industry, the European harmonisation of standards is now under way. The first construction category - cements – became subject to a European Standard in July. Instead of looking for the British Standard for cement (BS 12), UK companies wanting to source cement will need to look for the harmonised BS EN 197. Thirty harmonised standards are likely to be adopted this year and 600 more should be finalised in the next four years, although some sources suggest 2010 might be more realistic.
At the heart of harmonisation in the industry is the Construction Products Directive. The idea is to ensure products meet the same standards across Europe, making it easier for companies to source construction products from other countries. The CPD involves replacing existing national standards and technical approvals with a set of European "technical specifications". The CE mark then identifies that standards have been met.
According to the DETR's spokesman for Building Regulations, Tony Pillai: "This European law will have little effect on our own building regulations. But if products meet the European specifications and are CE-marked, architects and clients can be reasonably assured the product is safe." Under the CPD, supplying unsafe products is enough to warrant a prosecution.
The managing director of Dorma Door Controls, Terry Churchill, says: "End users and building managers should ensure that companies they deal with are able to provide documentary evidence to support the products they offer. This could be an important protection if litigation arises from an accident."
Anthony Davies, technical director of the Construction Products Association, thinks the CPD is a mixed blessing. "The problem is that bureaucracy is growing by the day and it looks like the cost is increasing for manufacturers." A European Commission workshop this year revealed smaller companies would be likely to struggle under the higher costs of extra testing and certification to gain CE marks.
Despite these fears, Steve Tyler of the British Standards Institution is confident that standards in Britain will not be adversely affected. "Sometimes harmonisation will mean British Standards are adopted across Europe and other times it will be vice versa. British Standards were the first to be established and are held in high regard worldwide."
Even if a product carries a CE mark, it could still be rejected across the European market. A brick could be ideal for use in Seville, for example, but virtually useless at withstanding a winter in Inverness. To cater for these geographic and climatic conditions differences, each member state is able to establish "levels and classes" of performance.
The DETR's Pillai is still positive about the directive. "Industry will need to change to accommodate these new requirements. It needs to wake up, and want to sell its expertise outside the home market."
… and there’s more
Among the remaining raft of legislations affecting construction firms, the following are worth bearing in mind:- European Directive on Electronic Commerce: has to be implemented in member states by 12 January 2002. It attempts to make on-line contracting easier
- Fire Precautions (Workplace) Regulations (1997 and updated 1999): to rationalise fire safety across Europe
- Lifting Operations and Lifting Equipment Regulations 1998: concerns hardware requirements for equipment and risk assessments
- Competition Act 1998: outlaws agreements, practices and conduct that affect competition; the European Commission is proposing that national authorities be given the power to apply the law in full
