- seeking justice
EIA screening exercise not carried out
Contrary to Community law, and contrary to advice from its own Planning Services department, it would appear that Newport Council failed to carry out any meaningful EIA screening exercise in respect of the Glebelands development. If so, this would make the decision to grant planning permission illegal under Community law. Prior to granting outline planning permission in October 2000, a memorandum dated 11th August 2000 from Newport Council’s Planning Services department to the Council’s Development Control department stated:
“ . . . We therefore request that a formal determination is made as to whether or not an EIA is required, and this decision recorded in the requisite manner.”.
This request accorded with the requirements of the EIA Directive. The EIA Directive was formulated specifically to deal with complex developments such as the Glebelands Development involving a severely contaminated site adjacent to the specially protected 'controlled waters' of the River Usk. It seems clear that Newport Council's Planning Services recognised the importance of a formal determination as to whether EIA is needed for the development (the 'EIA screening exercise'), and that the resulting decision should be formally recorded.
The Planning Services department was probably aware that a proper EIA screening exercise for the proposed development would have determined that EIA is needed for the development.
And in a letter dated 16 August 2000 to the Welsh Assembly in connection with call-in requests, the Countryside Council for Wales wrote, clearly alerting the Welsh Assembly to a need for EIA, as follows:
"The application does have potential implications for the River Usk cSAC and other features of European importance and in this context could be considered to be of more than local significance. However, with an Appropriate Assessment (and any other additional assessment of the environmental impact) and the implementation of adequate conditions in any permission, in principle it should be possible to avoid the development having a significant effect on the European features."
The fact that, thus far, the Glebelands Development has not been subject to EIA shows that no proper screening exercise of the development has been carried out. If a screening exercise had been carried out, the size; nature; and location of the development would have necessitated EIA. For more details, see our article 'Reasons why EIA is required'.
At least one representative of the Planning Division at the Welsh Assembly assumed that the nature of the site meant that the Glebelands Development would need to be subject to Environmental Impact Assessment. In a letter dated 5th October 2001, a representative of the Assembly’s Planning Division wrote:
“The main responsibility lies with the local planning authority to ensure that the planning process and the Environmental Impact Assessment fully take the nature of the site and its proposed use into account.”
In a letter dated 23 March 2005, Newport Council's Head of Planning and Economic Regeneration wrote:
"It was the judgement of myself and my Officers on behalf of the Council that an Environmental Assessment was not required for the development proposed."
However, it is not clear that the Head of Planning and Economic Regeneration was qualified to make such a judgement. And it is not clear that anyone else took part in the screening exercise since, contrary to the request from the Planning Services department, it appears that the decision was not "recorded in the requisite manner".
When Newport Council failed to provide any records of the EIA screening decision, the matter was referred to the Information Commissioner's Office (ICO). Following a six month investigation by the ICO, the ICO concluded in its decision letter dated 26th February 2010:
"Although it seems a reasonable expectation that there would be some written information which might comprise a 'screening opinion' either in the form of one specific document or a series of documents, it appears that no formal screening opinion was carried out in respect of this application."
The ICO also found that Newport council breached Regulations 11 and 14 of the Environmental Information Regulations 2004.
On balance, it seems likely that Newport Council chose to ignore the advice provided by its own Council's Planning Services department, and failed to make a formal determination "as to whether or not an EIA is required".
This tends to reinforce the view that the decision to grant outline panning permission in October 2000 was probably unlawful under Community law.