- seeking justice
Reasons why EIA is required
Because of the increased legal responsibility placed on local authorities through the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 - SI 1999 No 293 (the ‘EIA Regulations’), a number of guidance documents and ‘circular letters’ were issued to local planning authorities to ensure that planning officers understood the new regulations and implemented them correctly.
Although Newport council planners appear to have ignored the need for EIA for this development, and the advice it received, there are many good reasons why the Glebelands development should have been subject to EIA. The Glebelands Alliance has been astonished by Newport council's keen desire to avoid carrying out an effective EIA screening exercise in this case. The Glebelands Alliance alleges that Newport council had many opportunities to meet its legal obligations in respect of the EIA Directives, but failed to do so.
Welsh Office Circular 11/99
Circular 11/99, Para 18 states:
“Development of a type listed in Schedule 2 to the Regulations which:
a. 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
b. is located in a ‘sensitive area’, as defined in Regulation 2(1);
is referred to in this Circular as ‘Schedule 2 development’.”
Circular 11/99, Para 33 states:
“ . . . . in general, EIA will be needed for Schedule 2 developments in three main types of case:-
(a) for major developments which are of more than local importance . . . .;
(b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations . . . .; and
(c) for developments with unusually complex and potentially hazardous environmental effects . . . . “
In view of Circular 11/99 Para’s 18 and 33, the Glebelands development would appear to be Schedule 2 development for the following reasons:
(a) The proposed infrastructure development is listed under Schedule 2 (Annex A of Circular 11/99), in the following category:
‘Urban development projects (including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas)’.
(b) Although schools and housing are not specifically mentioned as examples of an urban development project, the examples of development included in Annex A were not intended to be an exhaustive list, as has been made clear in guidance by Communities and Local Government which states:
“The wording of the EIA Directive should be interpreted widely. The fact that a particular type of development is not listed specifically within one of the categories of projects in the Directive or the EIA Regulations does not imply that it is not caught. The categories of projects are illustrative, not exhaustive.”
(c) Para A18 of Annex A to Circular 11/99 makes the Glebelands Project more likely to be a Schedule 2 development because the new development is on a significantly greater scale than the previous use; and the types of impact are of a markedly different nature; and there is a high level of contamination.
(d) In addition, and with reference to Para A19 of Annex A to Circular 11/99, the Glebelands development is more likely to require EIA because the proposed development site had not previously been intensively developed; and the site area of the scheme is greater than five hectares.
(e) With reference to Section 1 in Annex B to Circular 11/99, the Glebelands development has special characteristics that need to be considered, including:
(i) the size of the development (greater than five hectares);
(ii) the production of waste (during land remediation);
(iii) pollution (potential to release toxic substances to air, land, and water, including Lotery's Reen, during excavation and land remediation); and,
(iv) risk of accidents (potential to release toxic substances to nearby residential areas, SSSI and SAC in the event of poor planning or poor site management).
(f) With reference to Section 2 in Annex B to Circular 11/99, the Glebelands development has the potential to affect an environmentally sensitive area, due to:
(i) existing land use (including its use as a hazardous waste landfill); and,
(ii) the proposed site being adjacent to a densely populated residential area; allotments used for food production; and the River Usk SSSI and SAC.
(g) With reference to Section 3 in Annex B to Circular 11/99, the Glebelands development has the potential for significant effects, due to:
(i) the amount and types of hazardous waste that have been deposited on the land over many years;
(ii) the lack of specific regulations and guidance for building a primary schools on land previously used to receive a range of different types of hazardous wastes in combination;
(iii) the likelihood that at least some hazardous material will be released to air, land or water during site investigation, land remediation, and construction works; and,
(iv) the potential for impacts to include long lasting effects that may also be irreversible due to the presence of sensitive areas, including the adjacent River Usk SSSI and SAC.
(h) Circular 11/99, Para 37 states:
“Special considerations apply to Sites of Special Scientific Interest (SSSIs), especially those which are also international conservation sites. In practice, the likely environmental effects of Schedule 2 development will often be such as to require EIA if it is to be located in or close to such sites, including . . . . candidate Special Areas of Conservation (SACs) . . . “.
(i) Circular 11/99, Para 41 states:
“A small number of developments may be likely to have significant effects on the environment . . . . [including] other types of development which are proposed for severely contaminated land and where the development might lead to more hazardous contaminants escaping from the site than would otherwise be the case if the development did not take place.“.
(j) Circular 11/99, Para 47 states:
“Where EIA is required for a planning application made in outline, the requirements of the Regulations must be fully met at the outline stage since reserved matters cannot be subject to EIA. When any planning application is made in outline, the local planning authority will need to satisfy themselves that they have sufficient information available on the environmental effects of the proposal to enable them to determine whether or not planning permission should be granted in principle.“
It is known that Newport council did not ensure that sufficiently detailed site investigation reports in respect of the proposed end-use had been provided at the time of granting planning permission.
Welsh Office Circular Letter CL-05-06
Circular Letter CL-05-06 dated 14 July 2006 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.”