R (Health & Safety Executive) v Wolverhampton City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Longmore,Lord Justice Pill |
| Judgment Date | 30 July 2010 |
| Neutral Citation | [2010] EWCA Civ 892,[2010] EWCA Civ 1025 |
| Docket Number | Case No: C1/2009/5747,Case No: C1/2009/2547 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2010 |
[2010] EWCA Civ 1025
Lord Justice Pill
Lord Justice Longmore
and
Lord Justice Sullivan
Case No: C1/2009/5747
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robert Griffiths QC and Ms Estelle Dehon (instructed by Wolverhampton County Council Legal Services) appeared on behalf of the Appellant.
Mr James Maurici (instructed by Reed Smith) appeared on behalf of the Respondent.
For the reasons set out in the approved judgment which I now hand down, the appeal is allowed and the respondent is ordered in accordance with the judgment of the court to remake its decision under section 97 of the Town and Country Planning Act 1990.
There has been a recent exchange of correspondence and submissions on costs. So far as costs are concerned, it has not been possible for us to meet to resolve those matters today and so we will determine the issue of costs in writing in due course.
So far as permission to appeal is concerned, we grant permission to appeal to the Supreme Court. We take the view that the issue is one of wider importance and there is a clear division of judicial opinion on the matter. The matter to which I refer of course is the question whether the council's potential liability to compensation when making a decision under section 97 or 102 of the Town and Country Planning Act is a relevant consideration.
So far as the precise form of the order is concerned, I will give the associate the draft but I will delete the paragraphs relating to costs and also slightly amend the provision relating to permission to the Supreme Court.
Order: Appeal allowed
[2010] EWCA Civ 892
The Hon. Mr Justice Collins
Before: Lord Justice Pill
Lord Justice Longmore
and
Lord Justice Sullivan
Case No: C1/2009/2547
CO/7276/2009
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Philip Coppel QC and Ms Carine Patry-Hoskins (instructed by Treasury Solicitors) for the Appellant
Robert Griffiths QC and Ms Estelle Dehon (instructed by Legal Services, Wolverhampton) for the Respondent
James Maurici (instructed by Reed Smith LLP) for the Interested Party
Hearing dates: Tuesday, 18th May/Wednesday, 19th May 2010
Lord Justice Sullivan:
Introduction
In these proceedings the Appellant (“the HSE”) applied for judicial review of two decisions made by the Respondent (“Wolverhampton”):(1) a decision on 4 th August 2008 to grant planning permission; and(2) a decision on 29 th May 2009 to refuse to make an order under section 97 of the Town and Country Planning Act 1990 (“the 1990 Act”) revoking or modifying that permission.
In his Order dated 5 th November 2009 Collins J. granted the HSE permission to apply for judicial review. In respect of the first decision, he allowed the claim and granted declaratory relief that Wolverhampton had failed to: (i) notify the HSE that it was minded to grant permission; (ii) notify the HSE that it had granted permission; (iii) give an adequate summary of its reasons for granting permission; and (iv) provide a summary of relevant policies when granting permission. He dismissed the HSE's challenge to the second decision.
There is no appeal against the first limb of the Order: the grant of declaratory relief as to Wolverhampton's failures when granting planning permission. In this appeal the HSE appeals against the second limb of the Order: the Judge's rejection of the claim and consequential refusal to grant any relief in respect of Wolverhampton's decision not to revoke/modify the permission.
Factual Background
On 4 th August 2008 Wolverhampton granted the Interested Party (“Victoria Hall”) planning permission for the erection of four blocks (blocks A-D) of student accommodation containing 668 study bedrooms with ancillary facilities on a plot of land between Culwell Street and Lock Street, Wolverhampton (“the development”). Some 95 metres away from the development, on the other side of a railway line, there is a liquefied petroleum gas (LPG) facility operated by Carvers LPG (Wolverhampton) Ltd. (“Carvers”). LPG is a dangerous substance within the meaning of Council Directive 96/82/EU of 9 th December 1996 on the control of major accident hazards involving dangerous substances. The LPG facility has hazardous substances consent under section 4 of the Planning (Hazardous Substances) Act 1990.
Because the proposed development involved the provision of residential accommodation in the vicinity of dangerous substances and because those substances were “toxic, highly reactive, explosive or inflammable” Wolverhampton was required to consult the HSE on the application for planning permission for the development. It did so on 6 th September 2007, and was advised in a letter produced by the HSE's online consultation software (known as PADHI+) that:
“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.”(emphasis as in original)
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 that planning permission had been granted on 16 th December 2008, 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.
The HSE attempted to find a solution with Wolverhampton. A meeting was held on 7 th January 2009 at which the HSE said that its preferred option would be to relocate Carvers. The outcome of the meeting was that Wolverhampton agreed:
“to consider what might be done to remedy the situation where there will be incompatibility between a major hazard and the development of student accommodation.”
In a letter dated 23 rd February 2009 to the Head of Development Control at Wolverhampton, the HSE set out the procedural failures that had resulted in the HSE being deprived of the opportunity to ask the Secretary of State to call in the application, said that serious safety concerns still remained, and asked Wolverhampton to issue an order:
“pursuant to s.97 of the Town and Country Planning Act (TCPA) 1990 to revoke or modify planning permission to develop land in this application. The purpose of granting the order in this matter, would be to disallow the development and completion of student accommodation, particularly those buildings in the inner and middle zone of Carver Ltd (liquefied petroleum gas installation).”
So far as relevant, section 97 of the 1990 Act provides:
“(1) If it appears to the local planning authority that it is expedient to revoke or modify planning 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 other material considerations.(3) The power conferred by this section may be exercised (a) where the planning permission relates to the carrying out of building or other operations, at any time before those operations have been completed; (b) ….(4) The revocation or modification of permission for the carrying out of building or other operations shall not affect so much of those operations as has been previously carried out.”
At this stage, the HSE does not appear to have appreciated that a revocation order under section 97 would have been of little use in respect of blocks A, B and C because their construction was well advanced and any such order would “not affect so much of those operations as [had] previously been carried out”: see sub-section 97(4) above. However, Wolverhampton, as the local planning authority should have appreciated that it was still possible to prevent the construction of the block that was closest to Carvers, block D.
Wolverhampton's response dated 3 rd March 2009 to the letter dated 23 rd February was to suggest a meeting between the interested parties, including Carvers, to discuss potential ways forward. The letter also said:
“You have asked the Council to issue an order to revoke or modify the planning permission. If the Council deemed this appropriate have you considered appropriate modifications?”
In reply, the HSE said:
“1. In terms of modification or revocation, it is necessary for the Council to prevent...
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