- seeking justice
Alleged unlawful amendment in 2008
Planning permission for this development was granted for the project as a whole. Accordingly, the Remediation Strategy (and the risk assessments upon which that strategy was based) was prepared and approved for the development site in its entirety. Neither the original planning permission, nor the submitted plans, nor the risk assessments, nor the remediation strategy allowed for a two phase development.
Letters exchanged in 2008 between Newport City Council's Development Control Manager and the developer formed an agreement that allowed the original single phase development to become a two-phase development. Importantly, it was not so much a local authority 'decision' that allowed the development to proceed in two phases, but an arrangement between an officer of Newport Council and the developer.
One of the letters allowing the planning permission amendment was sent by Newport City Council’s Development Control Manager to Vinci Investments Limited on 18th November 2008. The letter states:
“Had it been known at the time outline planning permission was granted that development would need to be phased in this way, the planning conditions would have been worded accordingly at that time. I therefore have no objection to the proposed phasing of the development, as this does not affect the spirit or purpose of the planning conditions, which will be complied with as per the approved details, albeit now in a phased manner.”
Newport council's letter of 18th November 2008 continued:
“It is my understanding that the phasing of the site would define the school site as being the land to the north of the reen.”
“It is my understanding that the remediation of land to the south of the reen (the housing site) is to be completed by the future developer in accordance with the previously approved details . . . ”
Newport council’s handling of this matter had effectively put Lotery’s Reen into ‘no man’s land’ – it being neither part of the school site (Phase 1), nor part of the housing site (Phase 2). This lack of precision reinforces the view that Newport council failed to understand the importance of Lotery's Reen. Lotery's Reen was treated by Newport council as though it were a benign feature on a map rather than, as it remains today, a fragile and vulnerable site characteristic.
Doubts about the suitability of using Lotery's Reen as a demarcation boundary are compounded by uncertainty concerning the intended location of Lotery's Reen. Specifically, Section 2.4 of the Remediation Strategy states:
"It is planned to alter the location of Lotery's Reen as part of the development, as it currently lies beneath the area of proposed housing. The proposed new location is still to be confirmed".
If Newport council really was sincere in its desire to protect controlled waters, it is not clear why the development plans to re-locate and to culvert Lotery's Reen were not enforced by Newport council. Ideally such re-location and culverting of the reen would have occurred right at the start of the land remediation activities, which commenced in the summer of 2008.
In any event, Condition 06 to planning permission 00/0768 had the effect of requiring Lotery's Reen to be lined prior to the commencement of any works on site. For more details, see our article 'Alleged unlawful commencement of works in 2006'.
Newport council was wrong to amend planning permission without, as a minimum, the prior production and approval of the necessary documentation and detailed maps clearly showing the location of Lotery's Reen in relation to Phase 1 and Phase 2.
The Development Control Manager was wrong to rely on his assumed 'understanding of the phasing of the site'. Instead, the Development Control Manager should have requested detailed drawings of what the developer was now proposing, and sought the necessary amendments to all the relevant plans and documentation as part of a new planning application, including updated risk assessments and an updated Remediation Strategy.
Newport council appears to have exercised more power than was reasonable, and acted against the public interest. Newport council had allowed the developer to commence development works without first severing the contamination pathway that exists between the contaminated land and Lotery's Reen.
Because the planning permission amendment had been permitted via an exchange of letters between the developer and the local planning authority, rather than through a planning application, members of the public were deprived of the opportunity to comment on the significant material changes that had been permitted to the approved plans.
Permission to adopt the two-phase approach failed to consider that the Remediation Strategy applied to the development as a whole. Indeed, it was not possible for the original approved plan, including the remediation strategy and risk assessment, to be applied to the school site independently of the residential housing site without leaving the River Usk SSSI and SAC vulnerable to pollution.
In effect, material changes had been made to the substance of the original planning permission to significantly alter the development’s character. Those who should have been consulted on the changed development were deprived of the opportunity of such consultation.
IN any event, officers of local authorities are not empowered to make material changes to a planning permission.
Although the planning permission amendment was allowed in 2008, it is deeply worrying that no documents describing Phase 1 and Phase 2 appear to have been produced prior to allowing the amendment.
Factors that should have been considered by Newport council prior to agreeing this material change to planning permission include:
(a) the likelihood of objections to the amendment because of previous objections to the development;
(b) the prospect of Lotery’s Reen remaining unlined for an unspecified period of time;
(c) the proposed changes would alter aspects of the scheme which had been judged critical to the original decision to grant planning permission – that is, to protect controlled waters, including the River Usk SSSI and SAC;
(d) whether all interested parties would agree with the Development Control Manager that phasing of the development would “not affect the spirit or purpose of the planning conditions”;
(e) a change to the development plan would require the need for EIA to be re-assessed (through an EIA screening exercise) due to the size, nature, and location of the development; and,
(f) the applicant should have been required to:
(i) submit a new application to set out the details of the change;
(ii) identify the supporting documents that needed to be updated; and,
(iii) consider the likely environmental effects of the proposed change.
It was the lack of documentation to support this amendment to planning permission that, in December 2009, resulted in the Environment Agency Wales (EAW) producing its own sketch in an attempt to establish a common understanding of the new development plan that had been permitted in 2008.
It is not clear how EAW could undertake any meaningful assessment of the revised development plans without detailed engineering drawings that had been approved and checked by the developer.
It seems highly likely that EAW ended up making decisions about the amended development plan based upon grossly misleading information about the new development scheme, especially in relation to the location Lotery's Reen relative to the Phase 1/Phase 2 boundary.
Even more astonishing is that the EAW sketch, which had very little in common with the Development Control Manager's description of the two-phase development plan was later 'approved' by Newport council's Principal Planning Officer in an email to EAW dated 17 December 2009 stating
"Checked plan with Mark. He is happy this is what he described."
But things take another twist in January 2010. On 18th January 2010, long after Newport council had agreed to the planning permission amendment in 2008, and two weeks after occupancy of the new school, the developer finally sent a drawing of the two-phase scheme entitled Remediation Phasing Plan dated 15th January 2010 to Newport council's Development Control Manager. On the 19th January 2010, the Remediation Phasing Plan was then forwarded to EAW and others.
When planning permission is granted, it is subject to the work being carried out in accordance with the approved plans. It is understood from the High Court decision of Sage v Secretary of State that any change from the approved plan requires a new planning application to be submitted so that the change can be properly considered. Furthermore, if the work is carried out other than in complete accordance with the approved plans, the whole development will be unauthorised, as it will not have the benefit of the original planning permission.
A paper by North Lincolnshire Council mentions that in the case of Henry Boot Homes Ltd v Bassetlaw District Council, it was held that the planning authority was wrong in approving anything as a minor amendment, save the ‘smallest of small amendments’. In the case of Powergen UK plc v Leicester City Council one of the law lords observed that
‘compliance with a planning permission is not a matter for private agreement between developers and local planning authorities’.
The advantage to Newport council was clear. By not requiring a new planning application in respect of the two-phase approach, despite the importance of Lotery’s Reen, Newport council was, once again, able to circumvent the need to regularise matters through a further EIA screening exercise.