R (Health & Safety Executive) v Wolverhampton City Council

JurisdictionEngland & Wales
JudgeLORD SUMPTION,LORD CARNWATH,LORD HOPE,LORD WALKER, LORD DYSON
Judgment Date18 July 2012
Neutral Citation[2012] UKSC 34
Date18 July 2012
CourtSupreme Court

[2012] UKSC 34

THE SUPREME COURT

Trinity Term

On appeal from: [2010] EWCA Civ 892

before

Lord Hope, Deputy President

Lord Walker

Lord Dyson

Lord Sumption

Lord Carnwath

The Health and Safety Executive
(Appellant)
and
Wolverhampton City Council
(Respondent)

Appellant

Philip Coppel QC

Carine Patry Hoskins

(Instructed by Treasury Solicitors)

Respondent

Robert Griffiths QC

Estelle Dehon

(Instructed by Wolverhampton City Council Legal Services)

Respondent

James Maurici

(Instructed by Reed Smith LLP)

Heard on 13 and 14 June 2012

LORD CARNWATH (WITH WHOM LORD HOPE, LORD WALKER, LORD DYSON AND LORD SUMPTION AGREE)

Introduction
1

The appeal raises a short issue of construction under the planning Acts, on which differing views have been expressed by experienced planning judges in the courts below. It arises in the context of a planning permission granted by the respondent council for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas ("LPG"). The question, as agreed by counsel for the purposes of the appeal, is:

"In considering under section 97 of the Town and Country Planning Act 1990 whether it appears to a local planning authority to be expedient to revoke or modify a permission to develop land, is it always open to that local planning authority to have regard to the compensation that it would or might have to pay under section 107?"

The Court of Appeal by a majority (Longmore and Sullivan LJJ, Pill LJ dissenting) [2011] PTSR 645 decided it in the affirmative.

2

Unusually, the court is asked to consider this question, not in the context of a specific decision of the council to revoke the permission, but as an abstract point of construction in connection with a decision which may or may not be made in the future. As I understand it, the Court of Appeal has granted permission to appeal on the footing that the point is one of some general importance on which a definitive decision is desirable.

The parties
3

The Wolverhampton City Council ("the council") is the council for a metropolitan borough in the West Midlands. It is the local planning authority, and also the hazardous substances authority for the relevant area under the Planning (Hazardous Substances) Act 1990 ("the PHSA 1990").

4

The Health & Safety Executive ("the HSE") is a statutory non-departmental public body, established under the Health and Safety at Work etc. Act 1974. It has a general duty under the Act to work with others to secure the health, safety and welfare of people at work, to protect the public against risks to health and safety arising from work activities, and to control dangerous substances. The statutory regime for the control of hazards involving dangerous substances includes the Control of Major Accident Hazards Regulations 1999 (SI 1999/743) (made under European Council Directive 96/82/EC (the "Council Directive")). The HSE together with the Environment Agency is the "competent authority" under that regime, with responsibility to oversee its operation and to co-ordinate the regulation of major hazards. As part of that role, the HSE sets acceptable levels for particular classes of risk to the health and safety of the population, measured by the probability of a particular occurrence.

5

The HSE's advice in relation to particular development proposals is, in most cases, generated by a risk model known as "Planning Advice for Developments near Hazardous Installations" ("PADHI"). There is a computer-based version of this model, known as "PADHI+", which allows local planning authorities to consult and obtain the HSE's advice online by entering various site-specific details. The distance between the hazardous installation and the proposed development is related to three "zones" (inner, middle and outer), the inner zone posing the greatest risk.

6

The interested party, Victoria Hall Ltd ("the developer"), is a private limited company whose main business is the provision of student accommodation, nationally and internationally. It was represented by counsel in the Court of Appeal, but not in this court.

Statutory provisions
7

The grant of planning permission is governed by section 70 of the Town and Country Planning Act 1990 ("the 1990 Act".) Where an application is made to the local planning authority, they may grant permission (conditionally or unconditionally) or refuse permission. In dealing with the application they must "have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations" (s 70(2)).

8

Section 97, which is directly relevant to the appeal, provides:

" Power to revoke or modify planning permission

"(1) If it appears to the local planning authority that it is expedient to revoke or modify any permission to develop land granted on an application made under this Part, the authority may by order revoke or modify the permission to such an extent as they consider expedient.

(2) In exercising their functions under subsection (1) the authority shall have regard to the development plan and to any other material considerations.

…"

9

In relation to building operations, the power to revoke or modify may be exercised at any time before the operations have been completed, but will not affect those operations so far as previously carried out (section 97(3)(4)). If there are objections, a revocation order made by a local planning authority is subject to confirmation by the Secretary of State (section 98). If the order is confirmed, compensation is payable by the authority for abortive expenditure, and for other loss or damage directly attributable to the revocation or modification (section 107). Section 100 gives the Secretary of State a separate power to make an order under section 97. Such an order has the same effect as one made by the local planning authority (section 100(2)), with the consequence (inter alia) that the authority, not the Secretary of State, are liable to pay compensation.

10

Although not directly relevant to this appeal, parallels have been drawn in argument with the provisions of section 102 (and related sections) for "discontinuance orders", that is orders for the discontinuance of any use of land, or for the imposition of conditions on any such use. Under section 102(1) a discontinuance order may be made, if:

"having regard to the development plan and to any other material considerations, it appears to a local planning authority that [such action] is expedient in the interests of the proper planning of their area (including the interests of amenity) …"

11

Finally, reference should be made to the provisions for "hazardous substances consent" under the PHSA 1990. By section 4, subject to certain limits, the presence of a hazardous substance on, over or under land requires a hazardous substances consent. By section 9, consent may be granted by the hazardous substances authority. In dealing with an application for consent, the authority is required to have regard to "material considerations", which are defined as including in particular the existing and likely future uses of land in the vicinity, and the provisions of the development plan (s 9(2)). By section 14 the same authority may make an order revoking or modifying such a consent, "if it appears to them, having regard to any material considerations, that it is expedient to revoke or modify it". By section 19, compensation is payable in respect of any loss or damage directly attributable to the revocation or modification.

Background facts
12

On 4 August 2008, following an application by the developer, the council granted planning permission for the erection of four blocks (blocks A-D) of student accommodation on land between Culwell Street and Lock Street, Wolverhampton. Some 95 metres away from the nearest block (Block D), on the other side of a railway line, there is a LPG facility operated by Carvers LPG (Wolverhampton) Ltd. ("Carvers"). LPG is a dangerous substance within the meaning of the Council Directive. The site accordingly requires, and has been granted, hazardous substances consent under the PHSA 1990.

13

Because of the proximity of the LPG site, the council was required to consult the HSE on the application. They did so on-line (by PADHI+) and received the following response:

"The assessment indicates that the risk of harm to people at the proposed Development is such that HSE'S advice is that there are sufficient reasons, on safety grounds, for advising against the granting of planning permission in this case."

This advice was in due course reported to the planning committee by the officers, with an indication that though not mandatory it "should not be overridden without careful consideration".

14

What followed is summarised by Sullivan LJ (para 6):

"Despite this warning, when considering the planning application Wolverhampton failed to consult further with the HSE, failed to obtain its own advice as to the safety implications of permitting a substantial amount of residential accommodation in this location and, despite being obliged to do so, failed to give the HSE advance notice of its intention to grant planning permission for the development, and failed to notify the HSE that it had granted permission. The HSE first discovered on 16 December 2008 that planning permission had been granted, over four months after the grant of permission and, since works had commenced prior to the grant of permission, five months after the works had commenced. By the time the HSE became aware of the development, work on three of the blocks, A, B and C, was well advanced. Work on block D, which was the closest block to the LPG facility, had not commenced."

15

Sullivan LJ also described the attempts which were made by the HSE over the following weeks to resolve the issue by agreement with the council and the other interested parties. They...

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