Welsh Assembly may have
a duty to revoke planning permission
On 1st April 2010, the Welsh Assembly announced that it had decided not to
revoke planning permission, 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, 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. Indeed, 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.
Accordingly, the Glebelands Alliance has asked the Welsh Ministers to
re-consider the decision not to revoke planning consent on the grounds that UK
authorities do have a duty to ensure compliance with the Environmental Impact
Assessment (EIA) Directives. The Glebelands Alliance's response to the Welsh Assembly's
refusal to revoke planning permission can be seen at:
http://www.chepstowfoe.org.uk/glebelands/documents/20100809_TD_JM.pdf
The Glebelands Alliance maintains that Newport
council deprived local residents, pupils, parents, and other interested parties
of the benefits of an environmental impact assessment which would have
established the risks to human health and the
wider environment caused by the development.
Background
In July 2009, the Glebelands Alliance
requested that Newport City Council revoke planning permission for the
Glebelands development. A copy of that revocation request letter can be
downloaded from:
http://www.chepstowfoe.org.uk/glebelands/documents/20090726_AE_JM.pdf
After three months, Newport City Council
had still not responded to the revocation request, or a complaint to the
council's Monitoring Officer. So, in October 2009, a new revocation request
was prepared and submitted to
the Welsh Assembly. A copy of that revocation request can be downloaded from:
http://www.chepstowfoe.org.uk/glebelands/documents/20091026_JD_JM.pdf
The detailed supporting document for
the revocation request can be downloaded from:
http://www.chepstowfoe.org.uk/glebelands/documents.htm#gadg
Newport City Council
breaches Environmental Information Regulations
Despite a six month
investigation by the Information Commissioner's Office (ICO), the Glebelands
Alliance is no closer to understanding why Newport council did not carry out an
Environmental Impact Assessment (EIA) for the Glebelands development.
Nevertheless, the Glebelands Alliance is grateful to
the ICO for its thorough investigation into a complaint about Newport Council's
failure to make available details of the Council's 'EIA screening opinion' for
the Glebelands development.
The ICO found that
Newport Council breached Regulations 11
and 14 of the Environmental Information Regulations 2004, and concluded:
"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. It would seem that
the Head of Planning made an unrecorded judgement that one was not required on
the basis of the information supporting the planning application and through
additional on-going investigative work required by the planning condition.
I am therefore satisfied that on the balance of probabilities that the
information requested by Mr Martin is not held by the Council."
The Alliance accepts the ICO's position
that it is beyond the scope of the ICO to consider the relative merits of
whether details of the screening opinion should have been recorded.
The Alliance remains determined to find
out why Newport Council failed to properly consider EIA
criteria, and why the public was deprived of knowing the likely environmental
effects of this development prior to Newport Council granting outline planning
permission in October 2000.
For more details about the complaint
and the ICO's decision, see:
http://www.chepstowfoe.org.uk/glebelands/documents/20100226_GP_CD.pdf
Also relevant is an internal memorandum from the Council's Planning Services department to
the Development Control department. The memo was written prior to outline
planning permission being granted and clearly requests that " . . . a formal
determination is made as to whether or not an EIA is required, and this decision
recorded in the requisite manner":
http://www.chepstowfoe.org.uk/glebelands/documents/20000811_JV_MJF.pdf
