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EIA is not discretionary
Circular 11/99, Para 12 states:
“While only a very small proportion of development will require EIA, it is stressed that EIA is not discretionary. If significant effects on the environment are likely, EIA is required.”

It is worth repeating this important point:
EIA is not discretionary. If significant effects on the environment are likely, EIA is required.

In addition, it is not sufficient for a local authority to ignore EIA and rely on a planning condition to require a site investigation at some later stage.  Such a planning condition cannot deal with this issue.

The content of a letter from Newport council's Chief Education Officer dated 25th November 2004 appears to suggest a fundamental misunderstanding of the EIA Regulations on the part of Newport council.  The letter states:
“An Environmental Impact Assessment was not requested with the original outline application in 2000. The conditions attached to the outline consent were designed to ensure that there would be no significant environmental impact by considering such matters as human health, aquatic environment and the treatment of contaminated land.”

In the similar case of Regina oao Lebus v South Cambridgeshire DC [2003 2PLR5] a resident challenged the granting of planning permission where the officers had concluded that the potential adverse impacts of the development would be insignificant with proper conditions and management.  The Court allowed the appeal and quashed the planning permission.  So far as planning conditions and EIA are concerned it held that:
'it is not appropriate for a person charged with making a screening decision to start from the premise that although there may be significant impacts, these can be reduced to insignificance by the application of conditions of various kinds. The appropriate course in such a case is to require an environmental statement and the measures which it is said will reduce their significance'.

The Glebelands Alliance alleges that Newport council granted itself planning permission without first ensuring that the necessary site investigations and risk assessments had been undertaken and, therefore, without knowing the likely significant effects of the development on the environment.  It seems likely that Newport council had failed to fully consider EIA criteria before adopting a screening opinion, making the screening opinion invalid and, potentially, the granting of planning permission illegal under EIA Regulations.

This point may be illustrated by reference to 'Burges Salmon Planning News' for Winter 2007/2008.  This newsletter comments on the case of R (on the application of Mortell) v Oldham Metropolitan Borough Council [2007] EWHC 1526 (Admin) for which the High Court concluded that failure to fully consider EIA criteria before adopting a screening decision that a development fell outside the EIA regulations meant that the decision was invalid and the development's planning permission, granted on the back of that screening decision, was quashed.

The court concluded that a site investigation was necessary prior to adoption of a screening opinion for the proper application of the EIA regulations.  Oldham MBC had granted permission without such an investigation. The court did not accept Oldham MBC's argument that a site investigation condition would deal with this issue.

Therefore, it seems unlikely that a Court would accept the argument from Newport council’s Head of Planning and Economic Regeneration, who has stated:
“Both the Council and the consultees considered that the environmental implications of the development could be assessed satisfactorily from the supporting information submitted with the application and the imposition of planning conditions requiring investigative work”.

The view held by Newport council that EIA is discretionary, and that planning conditions requiring site investigations can deal with environmental impact issues persists.  In a letter dated 29 June 2009 to Mr J Martin, Newport council’s Development Control Manager wrote: “. . . The Council must use its discretion, based upon input from other relevant parties, whether or not an application can be determined in the absence of an Environmental Statement and in this case it was clear from the information available and received at the time that an Environmental Statement was not necessary as all relevant environmental matters had either been addressed or could be addressed and controlled by planning conditions attached to any planning permission.”

However, it is not true that “the Council must use its discretion” in developments of this type.  As we saw above, Circular 11/99 states:
“EIA is not discretionary. If significant effects on the environment are likely, EIA is required.”

A presentation dated 6th March 2006 by John Pugh-Smith Barrister, 39 Essex Street Chambers recalls the case of Hereford Waste Watchers Limited v Herefordshire Council [2005] EWHC 191 (Admin).  Mr Pugh-Smith writes:
“. . . the primary issue concerned the duty on the decision maker to obtain further information on the significant environmental effects of a waste treatment and recycling facility before granting consent.  Here, the reporting officer had expressed concerns over the efficacy of a proposed system for controlling emissions, based on advice from the council’s own environmental health officer.  As a consequence, one of the planning conditions stated that no development should take place until a report had been prepared specifying the expected levels of all pollutants from the facility and their predicted emission level into the atmosphere.  Mr Justice Elias found that the council should have insisted upon the provision of the additional information before granting planning permission.  By taking the latter course it was effectively depriving consultees the opportunity to be consulted on the likely environmental impact.  The planning permission was accordingly quashed on this ground.”

Despite the clear legal position in relation to EIA, in a letter dated 1st September 2009, Newport council’s Head of Law and Standards insists that adequate information about the site was available at the time of granting planning permission, stating:
“An Environmental Impact Assessment was not required in this case because the proposed development could be assessed satisfactorily from the other supporting information submitted with the planning application.  The Planning Officers were also satisfied that the imposition of relevant planning conditions would adequately cover any need for site investigation work.”