HSE wins appeal over council's failure to consider revoking planning permission

The Court of Appeal has ordered Wolverhampton City Council to consider whether it should revoke planning permission for a student accommodation block located close to a liquefied petroleum gas facility.

In The Health & Safety Executive v Wolverhampton City Council & Anor [2010] EWCA Civ 892, the council had granted Victoria Hall Ltd planning permission for the erection of four blocks that would provide 668 study bedrooms. An LPG facility was sited 95 metres away from the development.

But the local authority granted permission without informing the Health & Safety Executive (HSE), which had previously advised in a letter produced by its online consultation software that the risk of harm at the development was such that there were sufficient reasons on safety grounds against granting planning permission.

Despite this warning, the council failed when considering the planning permission to consult further with the HSE, obtain its own advice as to the safety implications, or give the executive advance notice of its intention to grant permission. It also subsequently failed to notify the HSE that it had granted permission.

At first the HSE sought to find a solution that might include moving the LPG facility. Later the council wrote to the executive saying that it had taken preliminary legal advice and after consideration of the information available could see not justification for revoking or modifying the planning permission.

The HSE applied for judicial review of two decisions by the council:

• the decision on 4 August 2008 to grant planning permission; and
• the decision on 29 May 2009 to refuse to make an order under s.97 of the Town and Country Planning Act 1990 revoking or modifying the permission.

In an order made on 5 November 2009, Collins J had allowed the claim and granted declaratory relief in respect of the first decision. However, he dismissed the HSE’s challenge in relation to the second decision on the basis that accommodation blocks A, B and C had been completed. The HSE then appealed the second limb of the judge’s order.

Lord Justice Sullivan, giving the lead judgement in the Court of Appeal, upheld the HSE’s appeal, ruling that the council had unlawfully failed to consider whether to use its powers to revoke or modify the planning permission for (the as yet unbuilt) block D of the accommodation alone. The judge said a s.97 order, which would have had the effect of preventing the construction of block D (the closest to the LPG facility), should have been considered with care by the planning authority.

Lord Justice Sullivan also ruled that the local authority could take into account – when reconsidering its position – the compensation payable to Victoria Hall if permission for block D is revoked.

Lord Justice Longmore agreed that the fact and amount of compensation were matters that the planning authority was entitled to take into account, but suggested that this did not mean a planning authority could simply invoke "a vague concept of cost to the public purse". The authority would therefore have to say what the amount of compensation is likely to be and why it is expedient for it not to be paid in circumstances in which revocation or modification might otherwise be appropriate.

However, Lord Justice Pill, dissenting on the issue of compensation, argued that the “central point is that planning decisions must be taken on planning grounds”.

A spokeswoman for the HSE said it welcomed the decision. She said: "The council's decision not to revoke or modify the planning permission has been quashed, and it must now reconsider the matter. HSE looks forward to working with the council, in accordance with established planning procedures, to ensure that it gives due weight to safety concerns when making decisions."

She added: “Local planning authorities must involve HSE in planning applications which are close to hazardous sites, and must advise HSE if they propose to grant planning permission. HSE has over 30 year’s experience in this field and will continue to base its advice on planning applications on the best assessment of risk.”