This article discusses the question "Did Newport council have a responsibility to undertake an EIA screening exercise for planning application 09/0591 (discharge of Condition 07 to 00/0768)?"

This question was submitted by Steve Rawlings, Chepstow Friends of the Earth to the Planning Division at the Welsh Assembly Government in an email sent on 14th March 2011.  This question was prompted by a letter to John Martin, dated 10th March 2011 in which Newport council's Principal Planning Officer responded to a freedom of information request as follows:
"This discharge of condition request was not considered to include information that would mean new significant environmental effects were/are likely over and above those environmental effects previously considered in relation to the site.  Therefore, there is no documentation on file 09/0591 relating to EIA screening as no screening was considered to be required."

Given the controversy surrounding the lack of EIA for the Glebelands development, it is worth exploring this further – especially since the question relates to a planning permission that was approved after the Glebelands Alliance submitted its revocation request to Newport City Council in July 2009, and after the Glebelands Alliance submitted its revocation request to the Welsh Ministers in October 2009.  Both revocation requests cast doubt on Newport council’s compliance with the EIA Directives. 

If it turns out that, despite all that had gone before, Newport council did have a duty to undertake an EIA screening exercise for planning application 09/0591, it would appear that yet another opportunity to regularise the EIA aspects of this case have been circumvented by the local authority.


Relevant planning conditions

Condition 06
Condition 06 to planning permission 00/0768 states:
". . . . A remediation strategy . . . shall be formulated and approved in writing by the local planning authority and the agreed scheme shall be carried out prior to the commencement of any works on site.

Reason: To ensure that the site is comprehensively investigated, the presence of contamination clearly identified and its impacts appropriately mitigated in the interest of residential amenities and to safeguard the interests of future users of the site.”


Condition 07
Condition 07 to planning permission 00/0768 states:
“On completion of the works of remediation the applicant shall provide a certification report, compiled by a suitably qualified engineer who has supervised the works, which confirms that the remediation works have been completed fully in accordance with the approved remediation strategy.

Reason: To ensure that the remediation strategy is effectively implemented in the interest of residential amenities and to safeguard the interests of future users of the site.”


Observations

1) The remediation works have still not been completed fully as required by Condition 07 (for example, Lotery's Reen remains unlined).  Therefore, it would appear that Condition 07 was discharged unlawfully at the planning committee meeting held on 19 January 2010.

2) Condition 06 is a true condition precedent which, being central to the development, went to the heart of the planning permission.  Therefore, because the agreed remediation scheme (as required by Condition 06) has still not been completed, it would appear that the building work on site is not authorised by the planning consent as the work carried out does not comply with planned arrangements as set out in the planning permission.

3) Because planning application 09/0591 is a subsequent application for approval of a matter where the approval
(a) is required by Condition 07 to planning permission 00/0768; and,
(b) provided the means to discharge Condition 06 (a condition precedent for achieving development consent),
it would appear that Newport council had a duty to ensure that an EIA screening exercise was carried out for planning application 09/0591, as per Town and Country Planning (Environmental Impact Assessment) (Amendment) (Wales) Regulations 2008.

4) Because this development has not previously been subject to EIA; and because the likely environmental effects of the Glebelands development were not known at the time of granting planning permission, Newport council should have considered the all the likely environmental effects of the development, not just the new significant environmental effects of planning application over and above those previously considered.

5)It seems likely that Newport council failed to properly consider planning application 09/0591 and the submitted certification report (later called Remediation Validation Report) in respect of EIA.

6) It is not clear that Newport council properly considered the following matters prior to deciding not to undertake an EIA screening exercise:
(a) the fragile nature of Lotery’s Reen due to its composition;
(b) the vulnerable nature of Lotery’s Reen due to its proximity to severely contaminated land;
(c) the importance of ensuring that Lotery’s Reen was lined in a concrete channel (as required by the Remediation Strategy) but which Newport council failed to do;
(d) the need to treat the development as Schedule 2 development for the purposes of EIA;
(e) the past failures to follow-up elevated levels of radiation detected on the development site;
(f) the alleged unlawful planning permission amendment in 2002 to extend the time limit by which development must commence;
(g) the alleged unlawful commencement of works in 2006;
(h) the alleged unlawful planning permission amendment in 2008 to allow planned arrangements to change in favour of a two-phase development; and,
(i) the failure to properly control the remediation works in line with planned arrangements.


Relevant Circular Letters

Circular Letter CL-05-06

Circular Letter CL-05-06 dated 14 July 2006 to all Chief Planning Officers in Wales from Ms R Thomas, Head of Planning Division, Welsh Assembly Government provided interim guidance for local planning authorities on considering the need for Environmental Impact Assessment (EIA) at reserved matters stage in light of European Court of Justice ruling that outline consent and approval of reserved matters constitute a multi-stage development consent, within the meaning of Article 1.2 of the EIA Directive.

The note states:
“The Welsh Assembly Government considers that when a LPA receives an application for approval of reserved matters, regardless of whether EIA was carried out at the OPP [outline planning permission] stage, it should screen the development again to determine whether all of the likely environmental significant effects have been considered in order to satisfy the requirements of the EIA Directive. Where the detail at reserved matters has revealed new or additional likely significant effects on the environment not identified and/or assessed at the OPP stage, the approval of reserved matters without obtaining the necessary environmental information is likely to be in breach of the Directive and thus unlawful.”

Given that EIA was not carried out at the outline planning permission stage (as should have been the case); and given that the likely environmental effects of the proposed development had not been assessed at the time of granting outline planning permission, it would appear that planning application 09/0591 should have been subject to EIA screening.


Circular Letter CL-02-2008

Circular Letter CL-02-2008 dated 20 October 2008 to all Chief Planning Officers in Wales from Ms R Thomas, Head of Planning Division, Welsh Assembly Government provided further guidance for local planning authorities.

The circular letter noted that the following national legislation came into force on 6 October 2008:
(a) Town and Country Planning (Environmental Impact Assessment) (Amendment) (Wales) Regulations 2008 (S.I. 2008/2335, W. 198);
(b) Town and Country Planning (General Development Procedure) (Amendment) (Wales) Order 2008 (S.I. 2008/2336, W.198).

The circular letter also states:
“Circular Letter CL-05-06, dated 14 July 2006 provided advice on applying EIA to applications for the approval of reserved matters. The above legislation is intended to build on this by putting the requirement to consider EIA at reserved matters stage on an effective statutory footing, to which LPAs must now adhere."


Relevant Commentary

Department for Communities and Local Government

Although strictly a consultation document relating to England, the paper entitled 'The Town and Country Planning (Environmental Impact Assessment) (England) (Amendment) Regulations 2007' by Department for Communities and Local Government makes the following general points about the EIA Directive:

Para 1.2:
"The essence of the ECJ judgments is that, where development consent comprises a multi-stage process (such as in an application for outline planning permission where, following outline consent, application has to be made to the local planning authority for the approval of certain reserved matters), it must be possible to allow for EIA at the later stage if it has not been possible for it to be carried out or completed at the initial stage."

Para 2.6:
" . . . where the EIA procedure has not been fully carried prior to approval at the outline planning permission stage, it must be possible for it to be carried out prior to approval of an application for approval of reserved matters."

Para 2.10:
"The HoL [House of Lords] drew attention to the fact that, whilst the requirements of the regulations will need to take account of the possibility of carrying out EIA at a later stage of a multi-stage consent, the competent authority must still endeavour to undertake the assessment at the earliest possible stage in the decision-making process."

Para 3.4:
"We consider that the need to undertake EIA at reserved matters stage could arise in the following circumstances:
•         where EIA should have been required at outline stage but (for whatever reason) the planning authority
          failed to issue a screening opinion . . . . "

Para 3.7:
"Where no screening opinion or direction was issued prior to approval of outline planning permission, for whatever reason, the authority will need to issue a formal screening opinion prior to approval of reserved matters. Otherwise there may be a breach of the proposed Regulations and the EIA Directive."

Para 3.10:
"Although the ECJ judgments relate specifically to outline planning applications and approval of reserved matters, there are circumstances where conditions attached to full planning applications require the submission of details to and their approval by the planning authority, before development may commence. In our view such approval could also be construed as part of a multi-stage consent. This view appears to be supported by the House of Lords determination which, in referring to the condition relating to reserved matters which accompanied the outline planning permission in the Crystal Palace case, stated that “Any grant of planning permission which contains a condition in these terms must be regarded as a multi-stage development consent for the purposes of the Directive”."


Mills & Reeve

In the October 2008 issue of 'FuturePerfect?'  by Mills & Reeve, Caroline Moreton, Senior Solicitor makes the following observations:
"Only if the development has not already had an environmental statement prepared in respect of it when in fact it relates to EIA development, or if further likely environmental effects have come to light since an initial assessment was carried out, will further EIA be necessary. If the planning authority considers an application to relate to EIA development but a screening opinion at the initial application stage stated otherwise, a new screening opinion can be required . . . . .

"With the demise of the old-style bare or "red-line" outline applications and the introduction of new requirements such as design and access statements, much more information is known up-front and the scope for failing to carry out EIA, or for further environmental information to come to light at subsequent stages, may be remote. That said, there is a real opportunity to pick up at the subsequent application stage something that was missing in a previous environmental assessment."