Contrary to EU law (EIA Directives) and UK law (EIA Regulations), the Glebelands development has still not been 'screened' for environmental impact assessment by Newport council, the public authority primarily responsible for issuing an Environmental Impact Assessment (EIA) screening opinion.

A screening decision is a necessary first step in the EIA process so that decision makers can account for environmental values in their decisions and to justify those decisions in light of detailed environmental studies and public comments on the potential environmental impacts of the development.

So far, the actions of Newport council and the Welsh Government have blocked every opportunity to consider properly the risks of the Glebelands development to local residents, users of the Glan Usk Primary School, and to the wider environment.

As well as failing to make a screening direction, the Welsh Government has now announced that it will not be releasing the legal advice that led to its failure to issue a screening direction, because:
"the public interest in withholding this information outweighs the public interest in releasing it."
Adding,
"We consider that the release of the legal advice [that is] the subject of this request is likely to cause substantial harm to the public interest in retaining the confidentiality of legal and policy advice to Ministers."

Although Newport council failed to carry out an EIA screening exercise for the Glebelands development, the Welsh Ministers have refused to intervene by making its own screening direction.

Under EU law, this unfinished and environmentally complex development needs to be subject to environmental impact assessment due to its size; nature; and location.  Newport council has failed to screen the development for EIA despite several opportunities to do so, including:
- prior to granting outline planning permission (October 2000);
- prior to granting development consent; and,
- prior to occupancy of Glan Usk Primary School (January 2010).

Campaigners were expecting the Welsh Ministers to regularise matters to ensure that the necessary risk assessments were carried out. It remains the case that Newport council has allowed the Glebelands development to proceed without knowing the likely environmental effects of the development, and without providing an Environmental Statement.

The request was made to Newport council in December 2010 by Ms Morden on behalf of John Martin, Chairman of the Glebelands Action Group. Although Newport council acknowledged the request in January 2011, the request was never actioned and John Martin has since died.

The story starts in December 2010 when Mr Martin wrote to John Griffiths AM requesting suggestions for securing environmental justice in respect of "this unlawful development involving, as it does, the botched remediation of this severely contaminated site".

Mr Martin cited several examples of alleged wrongful actions and decisions by Newport council, including failures to ensure that an Environmental Impact Assessment was carried out; unlawful planning permission amendments in 2002 and 2008; failure to undertake agreed land remediation works prior to building the Glan Usk Primary School; unlawful use of the new school; and the unlawful discharge of a planning condition.

Accordingly, Mr Griffiths wrote to Newport council in January 2011 seeking clarification.  Despite several further letters, Mr Griffiths failed to secure a response from Newport council.  Sadly, John Martin died in June 2011.  Even though Newport council had a duty to respond to Mr Griffiths in a timely manner, it failed to do so.  Consequently, Mr Griffiths was unable to provide the advice sought by Mr Martin.

When Mr Martin first requested advice, John Griffiths was Leader of the Legislative Programme and Assembly Member for Newport East, becoming Minister for Environment and Sustainable Development in May. If a minister in the Welsh Government has trouble getting responses out of Newport council, it's no wonder that ordinary members of the public receive such poor service.

William Graham AM (South Wales East) has now offered to take up this matter on behalf of Mr Martin's fellow researcher Steve Rawlings, who lives in Chepstow.  Mr Graham will now work with Mr Griffiths to seek the necessary responses from Newport council and hence provide recommendations for seeking environmental justice.

Despite a significant body of evidence relating to the alleged unlawful actions and decisions of Newport council, an initial investigation by the European Commission has concluded "From the information provided we cannot identify a breach of European environmental legislation or indeed evidence that the authorities failed to carry out adequate assessments or monitoring of the site before or during the construction works that have been completed".

The complaint against Newport council and the UK Government was submitted to the Commission by Steve Rawlings in February 2010.  Mr Rawlings alleges that Newport council failed to ensure that an Environmental Impact Assessment was carried out for the development, as required by the EIA Directives.

Assuming that the Commission did give sincere consideration to the complaint, it is not clear how the Commission could fail to identify the obvious breaches of EU law. So further evidence will now be submitted to the Commission to spell out the breaches of EU law in even greater detail.

The Glebelands Alliance considers that the evidence presented in the revocation request concerning the conduct and decisions of Newport council would, if tested, be a damning indictment of the council's planning and development control procedures.  The Alliance also alleges that key planning decisions made by Newport council were unlawful.

However, the evidence presented in the revocation request will not be tested because the Welsh Ministers consider that the evidence does not pertain to relevant 'planning considerations'.

In its decision letter dated 24 March 2011, the Welsh Government claims that it can disregard maladministration, unlawful decisions, misinformation, and errors of judgement on the part of local authorities when considering a revocation request. The Glebelands Alliance feels that this approach cannot possibly promote good governance and has the potential to leave a rogue local authority free to do as it pleases.

The request to revoke planning permission was originally submitted to the Welsh Government in October 2009.  In August 2010, the Glebelands Alliance rebutted the Welsh Government's original reasons for refusing to revoke planning permission. This resulted in the Welsh Ministers considering the request to revoke planning permission a second time.

It is alleged that the Commission failed to reason properly its decision to close an infringement complaint against Newport council and the Welsh Assembly Government.

Although opening the inquiry does not necessarily imply that the European Ombudsman sees any merit in the complaint, it is an important first step to investigating the matter. The inquiry could take up to a year before reaching a preliminary conclusion. Obtaining justice in environmental matters can take a very long time!

Planning permission for the Glebelands development was granted in October 2000 by Newport council without following up the elevated radiation measurements.

At no time has Newport council sought to find out:
- the type(s) of radioactive material on the site;
- the precise location(s) of the radioactive material relative to the school building;
- how much radioactive material is present; or
- the likely environmental effects of the radioactive material.

The Council does not know the depth of the radioactive material or whether it is in the form of a gas, a liquid, or a solid. It is not known whether the radioactive material is sealed in glass vessels, or leaking from metal drums that corroded long ago.

Despite the clear evidence of the presence of radioactivity above normal background levels, Newport council concluded that:
"it is highly unlikely that the Glebelands site was ever a recipient of radioactive waste material".

However, this assessment is not entirely correct.  As the Court of Justice pointed out in its judgement ex parte Delena WellsCase 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 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.

In July 2009, the Glebelands Alliance requested that Newport City Council revoke planning permission for the Glebelands development.

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.

Nevertheless, the Glebelands Alliance is grateful to the ICO for its thorough investigation into Newport council's failure to make available details of the Council's 'EIA screening opinion' for the Glebelands development.

In February 2010, 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.

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.

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"