- seeking justice
Requests to revoke planning permission
Early revocation requests to Welsh Assembly
Concerns about poor consultation prompted Jocelyn Davies AM, Welsh Assembly Government to write a letter to Sue Essex, Minister for Environment, Planning and Transport on 13th December 2001, as follows:
“You will be aware that there is continuing public controversy regarding the proposals for the building of the replacement for Durham Road School, Newport, at the Glebelands which is a contaminated site. You will also be aware that the Children’s Commissioner has expressed his concern about these proposals and the possible impact that the development could have on children’s health. Residents of the area feel that the consultation by Newport County Borough Council was inadequate and that the proposals are not in the public interest because of the possible effects on children’s health. Therefore I would ask you to consider revoking the Planning Consent for this development.”
It is not clear what decisions were made, if any, regarding this particular revocation request from Jocelyn Davies AM.
However in a letter dated 5 March 2003 to Newport council's Head of Planning, the Assembly’s Head of Planning Division wrote:
“The Minister has considered all the documentation thoroughly and has concluded that on the basis of the evidence currently available she does not have grounds for initiating revocation procedures in relation to the outline planning consent for replacement Durham Road Schools. The Minister does however have remaining concerns about this case and indeed, the issue of health and planning in general. As doubtless you are aware concerns remain about the level of remediation which is required at the site, in order for it to be a suitable site for a new school. The Minister wishes to be assured that the necessary technical expertise will be applied to setting and delivering the appropriate standard for remediation at the site.”
The statement “The Minister does however have remaining concerns about this case and indeed, the issue of health and planning in general.” appears to acknowledge that there may be novel aspects to the Glebelands development in the area of ‘planning systems and health’.
Such novel planning aspects relating to building schools on landfill sites were mentioned by Dr Ruth Hall, Chief Medical Officer when she wrote:
“Current planning mechanisms provide an uneasy place for health issues and my staff are working in the project commissioned by the Cabinet Sub-Committee on Children and Young People to examine this. I urge renewed engagement of local agencies to address the points I have made in giving my views.”
And in their report dated 14 January 2002, the Cabinet Sub-Committee on Children and Young People provided the following advice:
“We need to find a robust means of ensuring that health risks and health concerns are dealt appropriately by the planning system.”
It is not clear whether this advice has so far resulted in the formulation of any such means for improving the robustness of the UK planning system.
July 2009 revocation request to Newport council
The Glebelands Alliance submitted a request to revoke planning permission for the Glebelands development to Newport council's Head of Planning, Regeneration & Strategic Housing on 26 July 2009. The covering letter was supported by a comprehensive 'comments and observations' document.
Because much of the evidence presented within the request to revoke planning permission concerned the actions and decisions of officers of the local authority, the author of the revocation request letter specifically stated:
"I would be grateful if you could refer this revocation request to the Planning Committee for consideration."
Newport council did not respond to the request to revoke planning permission until 11 November 2009 by which time the school part of the development was well advanced.
In the 11th November 2009 letter, the council's Head of Law and Standards wrote:
"Because the development has been substantially completed in accordance with the original planning consent, the Council does not have the power to revoke the consent in accordance with its powers under Section 97 of the Town and Country Planning Act 1990. Therefore, I regret that the matter cannot be remitted back to the Planning Committee for further consideration of the matters set out in your document "Development at the Glebelands, Newport – Comments and Observations Concerning Planning Application 00/0768" dated 26th July 2009."
As of February 2011, the revocation request has still not been referred to the council's Planning Committee.
The Glebelands Alliance disagrees with the council's view that
"the Council does not have the power to revoke the consent in accordance with its powers under Section 97 of the Town and Country Planning Act 1990".
In fact Section 97 (3) of Town and Country Planning Act 1990 states:
"The power conferred by this section may be exercised—
(a) where the permission relates to the carrying out of building or other operations, at any time before those operations have been completed;
(b) where the permission relates to a change of the use of any land, at any time before the change has taken place."
The Glebelands Alliance believes that Newport council, even today, still has the power to revoke planning permission because:
(a) the agreed remediation scheme has not been completed;
(b) the planning permission also related to a housing development which, as of February 2011, has still not commenced;
(c) Lotery's Reen has still not been re-located or culverted in a concrete channel, as per the approved development plans.
Since all the operations authorised by the permission have not been carried out, the power to revoke planning permission is still available.
If, as it seems, the council's legal opinion is not entirely correct, then the power to revoke the consent in accordance with its powers under Section 97 of the Town and Country Planning Act 1990 is still available.
If the power to revoke the consent is still available, Newport council was wrong when, in July 2009, it failed to remit the matter back to the council's Planning Committee for further consideration of the matters set out in the Glebelands Alliance document Development at the Glebelands, Newport – Comments and Observations Concerning Planning Application 00/0768.
October 2009 revocation request to Welsh Assembly Government
When, after a period of three months, Newport council failed to respond to the July 2009 revocation request submitted by the Glebelands Alliance (see above), the Glebelands Alliance submitted a new request to revoke planning permission to the Welsh Assembly Government in October 2009. The revocation request letter was supported by an updated 'comments and observations' document.
The Welsh Assembly Government did not respond to the new request to revoke planning permission until 1 April 2010 when the Head of Decisions Branch, Planning Division wrote to the Glebelands Alliance to advise that the request had been refused.
The reasons for refusing the revocation request conveyed the impression that no detailed investigation of the evidence submitted by the Glebelands Alliance had been undertaken prior to the Welsh Ministers refusing the request to revoke planning permission. At the very least, members of the Glebelands Alliance felt that the Welsh Assembly had failed to reason properly its decision not to revoke planning permission.
Instead, the Welsh Assembly appeared to rely on alleged misinformation provided by the Health Protection Agency to justify its decision not to revoke planning permission. No opportunity had been afforded to the Glebelands Alliance to review the information provided by the Health Protection Agency prior to the Welsh Ministers making their decision.
Regardless of any merit in the Glebelands Alliance's revocation request, the Welsh Assembly dismissed any possibility of revoking planning permission on EIA grounds, stating:
"It was established, in the case R. v Hammersmith and Fulham LBC Ex p. CPRE London Branch (Leave to Appeal) (No.2) that neither a local authority nor the Welsh Ministers are under any duty, by virtue of European or domestic law, to revoke a planning consent granted which was, or appears to be, in breach of EIA Regulations."
However, in a letter to Mr Steve Rawlings dated 23 June 2010 from Mr Liam Cashman, the then Acting Head of Unit, ENV.A.2, European Commission wrote:
"With regard to the claim by the United Kingdom authorities that a planning consent cannot be revoked once granted even if in breach of Directive 85/337/EEC as amended by Directive 97/11/EC and 2003/35/EC, I would suggest that this assessment is not entirely correct. As the Court of Justice pointed out in its judgement ex parte Delena Wells (Case C-201/02, 7 January 2004), Member States have an ongoing duty to ensure compliance with Community law and make good breaches of the Directive where possible."
United Kingdom authorities are obliged to take measures for remedying the failure to carry out an assessment of the environmental effects of a project, as provided for in Article 2(1) of Directive 85/337.
Although the Welsh Ministers have made their decision, observations refuting the reasons for refusing to revoke planning permission were submitted by the Glebelands Alliance to the Welsh Assembly in a letter dated 9 August 2010.
The Glebelands Alliance is, as of February 2011, still awaiting a response from the Welsh Assembly to its letter dated 9 August 2010.
It is not clear how such delays support the promotion of either compliance with Community law, UK law, or good governance.