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Alleged unlawful commencement of works in 2006

Condition 06 to planning permission 00/0768 for the Glebelands development stated:
“Prior to the commencement of development on the site (including any demolition or land raising works) the following shall be conducted:
(a) a site investigation consisting of at least 3 months duration of monitoring to ascertain the presence of gas having regard to the end use of the site. This shall include an analysis of the source of any gas and a report on the investigation shall be submitted for the consideration and approval of the local planning authority. This assessment must include the results of the survey and recommendations regarding any structural precautions to be incorporated into the buildings;
(b) a quantitative risk assessment of the ground conditions on the site having regard to the end use of the site. Such a risk assessment must use both the results of the site investigation entitled "Durham Road Schools PFI Project: Contamination Investigation Interpretative Report" (June 2000) and previous investigations in the area, together with any additional ground investigation as required to carry out a comprehensive risk assessment.

A remediation strategy in relation to both (a) and (b) above 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.”

It is worth highlighting some key elements of Condition 06:
(a) The wording of this condition appears to acknowledge that the characteristics of the site had not been properly investigated prior to granting outline planning permission, especially in relation to the proposed end use of the site.
(b) More importantly, this condition requires the remediation strategy (the ‘agreed scheme’) to be "carried out prior to the commencement of any works on site".  Hence Condition 06 is a true condition precedent which goes to the heart of the planning permission.
(c) Although the wording of the 'Reason' for Condition 06 appears not to recognise the importance of site investigations and the remediation strategy to protecting controlled waters, the intent of Condition 06 is amplified in the Planning Application Schedule dated 5 April 2006 for planning application 06/0170 (partial discharge of Condition 06) which states:
"This condition specifically relates to the impact of ground contamination upon human health, requiring investigation and remediation to mitigate any potential effects. It should be noted ground contamination also potentially effects controlled waters and whilst this was not the reason for this particular condition, it is acknowledged that the site investigation and remediation strategy needs to be compatible with this matter."

According to a letter dated 15th April 2010 from Newport council's Head of Law and Standards the development commenced in or about May 2006.  Because this was about two years before the commencement of the agreed remediation scheme, it was not possible for the agreed remediation scheme to have been carried out prior to the commencement of the development in May 2006.

It follows that the development which commenced at the site was in breach of Condition 06 and therefore unlawful, following the Whitley Principle (F G Whitley & Sons –v- Secretary of State for Wales 1992).  In general, operations carried out in breach of a condition cannot be relied on as a material operation capable of commencing the development within the meaning of Section 56 (2) of the Town and Country Planning Act 1990.

Condition 06 of planning consent 00/0768 is a true condition precedent which goes to the heart of the planning permission in so far as it required a remediation strategy to be formulated and approved in writing by the local planning authority and the agreed scheme to be carried out prior to the commencement of any works on site.

The importance of Condition 06 is emphasised in a letter from the Countryside Council for Wales dated 5 December 2003 to Newport Council, which stated:
"The application site lies adjacent to the River Usk candidate Special Area of Conservation (cSAC), River Usk (Lower Usk) Site of Special Scientific Interest (SSSI). Our comments on the outline planning application are provided in our letter of 2 August 2000. As you are aware, in determining the application Newport City Council undertook an appropriate assessment under Regulation 48(1) of the Conservation (Natural Habitats &c) Regulations 1994. This included measures to avoid adverse impacts on the features of the River Usk, which were covered by conditions attached to the permission. Our concerns should therefore be addressed via the implementation of planning conditions, particularly numbers 6 & 7 and 12 to 18."

As of February 2011, the agreed remediation scheme has still not been completed fully.  Lotery's Reen has still not been lined, and so a contamination pathway still exists between the made ground and Lotery's Reen.

As the work was not carried out in complete accordance with the approved plans and associated planning conditions, the school development should be regarded as unauthorised, as it does not have the benefit of the original planning permission.

The 15th April 2010 letter from Newport council's Head of Law and Standards also states:
"the wording in Condition 6 could be open to misinterpretation insofar as it required that "... the agreed scheme shall be carried out prior to the commencement of any works on site"."

However, the Glebelands Alliance finds that the wording of Condition 06 is not ambiguous.   Furthermore, even if the meaning of Condition 06 needed to be relaxed or varied, there appears to be no evidence to show that a planning application to vary the wording of Condition 06 has been submitted to the local planning authority.

Although Newport council could, for example, have (a) required a new planning application to submitted to set a new time limit by which the works must commence; or (b) required a new planning application to be submitted to vary Condition 06, Newport council failed to do either.

In any event, given the complex nature of the development site, it would have been unreasonable to commence works on the site prior to the remediation strategy being completed fully.

Newport council failed in its duty to ensure that the agreed remediation scheme as defined in the approved Remediation Strategy was fully implemented prior to commencement of works on site in or about May 2006.