Valero Logistics UK Ltd v Plymouth City Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Thornton
Judgment Date30 June 2021
Neutral Citation[2021] EWHC 1792 (Admin)
Docket NumberCase No: CO/384/2021

[2021] EWHC 1792 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mrs Justice Thornton DBE

Case No: CO/384/2021

Between:
(1) Valero Logistics UK Limited
(2) Greenergy Terminals Limited
Claimants
and
Plymouth City Council
Defendant

and

(1) Halo Aviation Limited
(2) Louis Dulling
Interested Party

Mr Philip Coppel QC and Ms Olivia Davies (instructed by Burges Salmon LLP) for the Claimant

Mr Wayne Beglan and Mr Sam Fowles (instructed by Plymouth City Council) for the Defendant

Hearing date: 19 May 2021

(Approved by the court)

Mrs Justice Thornton The Hon.

Introduction

1

The Claimants, Valero Logistics UK Ltd and Greenergy Terminals Ltd, challenge the decision of the Defendant, Plymouth City Council to grant planning permission for a development comprising a change of use from Class C3 residential use with permitted ancillary private helicopter use to commercial heliport at Victoria House, Cattedown Road, Plymouth, (“the Site”). The Defendant is the local planning authority for the Site. The Interested Party is the applicant for the planning permission.

2

The Claimants operate distilled fuel storage depots, the closest of which is approximately 125m away from the helipad. The depots are “establishments” regulated under the Control of Major Accident Hazards Regulations ( SI2015/483) (‘the COMAH sites’) because of the intrinsic dangers to human health and the environment which the products handled and stored there present. Highly flammable fuel is regularly unloaded at a dock approximately 400 metres south east of the site and conveyed by over-ground pipes to the Claimants' depots, where it is stored in above-ground tanks.

3

The Claimants challenge the decision on five inter-related grounds, as follows:

Ground 1 – the Defendant failed to consider a material consideration by not considering the risks posed by the development to the COMAH sites.

Ground 2 – the Defendant misunderstood the “fallback” position and, by relying on that misunderstanding, it skewed the process by which it made the decision.

Ground 3 – the Defendant acted irrationally by relying on the existence of other regulatory regimes in deciding to grant permission.

Ground 4 – the Defendant erred in law by granting permission to an application that conflicted with the development plan when no other material considerations justified such a decision.

Ground 5 – the decision was irrational.

4

The Claimants point to the potentially catastrophic consequences of a helicopter crashing onto highly flammable fuel and say that what unites the grounds is a decision-making process and decision that abdicates responsibility for the dangers created by the proposed development. In particular, the Defendant conspicuously failed to engage with the scale of the risk posed to the COMAH sites by commercially operated helicopters flying at low heights over large quantities of highly flammable fuel. To the extent the Defendant recognised any risk, it sought to off-load it onto the Civil Aviation Authority (CAA) even though the CAA did/does not have the mandate or the expertise to evaluate the consequences on the ground of crashing aircraft or to take land-based decisions accordingly. These remain the safety responsibilities of others including the Defendant who is said to have been, and remains, in denial about this.

The Facts

5

The Site measures 0.8ha in area and is 1.5kms south-east of the city centre of Plymouth. It is located in the southern part of Cattedown, an area characterised by heavy industrial uses and operations. It is currently in residential use (Class C3). In addition to a house, the site has an asphalted area.

6

On 3 May 2001 a Certificate of Lawful Development Use was issued for a single residential property, ancillary garaging and storage and associated residential curtilage. On 5 June 2001, permission was granted for an extension to the garaging for use as private helicopter hangar.

7

Greenergy owns and operates its fuel storage depot approximately 100 metres to the north-west of the Site. It has 14 main fuel storage tanks with a capacity for 54 million litres of distilled fuel. Valero owns and operates its depot approximately 600 metres to the east of the Site. Its fuel storage depot has capacity of 54 million litres of distilled fuel. Both the distilled fuel and the vapours from the fuel are highly flammable. Greenergy and Valero each receive petroleum products from ships berthed at the tanker berth at Cattedown Wharf, approximately 400 metres south-southeast of the Site. Vessels are docked at the berth on average 2–4 times per week, for periods of around 24 hours. Each vessel typically holds 12,000–13,000 tonnes of fuel. During discharge, these vessels are approximately 32.4 metres (i.e. approx. 100 feet) above the waterline and protrude westerly over the jetty by around 80 metres.

8

The Interested party applied for planning permission on 20 May 2020 for a change of use to establish a commercial heliport on the Site to be known as “Plymouth City Heliport”. The application envisaged 2–3 commercial helicopter passenger landings per week subject to evening and weekend limitations. The flight paths submitted by the Interested Party would involve helicopters flying over the bow of vessels discharging fuel. Accordingly, the Interested Party submitted an agreement between it and the Harbour Commissioners providing for liaison prior to any commercial helicopter landings (referred to as a “deconfliction agreement”). It also submitted a specimen permission from the Civil Aviation Authority permitting landing and taking off for helicopters in a congested area. Correspondence with the Civil Aviation Authority was also provided.

9

On 12 June 2020, Greenergy submitted an objection to the proposed development. On 17 June 2020, Valero also submitted an objection. Both expressed concerns about the safety implications of the proposed development for the nearby COMAH sites.

10

The Planning Officer sent the Interested Party's risk assessment and the proposed flight paths to the Civil Aviation Authority and sought its views.

11

The Planning Officer produced a report for the Planning Committee recommending the grant of planning permission, subject to planning conditions. The report concluded as follows:

“…the proposal provides tangible betterment, ensuring flights are carried out in a structured and considerate way by an operator who is fully accountable to the Civil Aviation Authority. This should give adjacent site operators greater [sic] and perhaps reduce the risk to their operations and onsite emergency plans when compared against an unregulated and unrestricted domestic use which can operate in an ad-hoc way.

Whilst health and safety is covered by separate legislation, having a regulated facility rather than a domestic facility surely safeguards the surrounding operators, providing comfort that modern fleet and professional pilots are operating to the highest safety standards.”

12

On 17 September 2020, the Defendant's planning committee met to consider the application and resolved to grant planning permission for the proposed development, subject to the signing of a section 106 Agreement.

13

On 23 December 2020, the Defendant granted planning permission for the commercial heliport development of the Site, in the following terms:

“Change of use from private helipad to commercial heliport, including demolition of existing private hangarage building and erection of new commercial hangarage building and associated works.”

14

The grant of planning permission included 23 conditions. These included Condition 5 titled “Deconfliction with Cattledown Operators”. This condition had not been proposed by officers but was included by Committee members following the debate at the Planning Committee. It provides that before the first flight:

“The development hereby approved shall not be brought into first use until the applicant (Halo Aviation) establishes a direct line of communication with the neighbouring COMAH sites in order to increase awareness of aircraft activity at the site. The applicant will attend the Cattedown Emergency Planning Forum meetings for the first 12 months of operation and as requested thereafter by Plymouth City Council's COMAH officer or successor in title.

Reasons In the interests of promoting health and safety around the application site and promoting the safe flying conditions and avoid conflict with Policies DEV1, DEV2, and DEV20 of the Plymouth and South West Devon Joint Local Plan 2014–2034 (2019) and the National Planning Policy Framework 2019.”

15

In addition, Condition 19, which had been proposed by officers, imposed a number of flight restrictions and procedures including:

a. limiting the flight paths to two, which will be mainly over water,

b. restrictions on flights in the evenings, weekends and bank holidays,

c. a maximum of 160 commercial helicopter landings at the site per year, save in emergency,

d. all commercial helicopter landings to be operated in accordance with Plymouth City Heliport & Cattewater Harbour — Deconfliction Agreement, dated 15 June 2020.

Legal framework

Aviation

16

The proposed heliport will be an “aerodrome” within the meaning of aviation legislation, including the Civil Aviation Act 1982, the Rules of the Air Regulations 2015 (2015/840) and the Air Navigation Order 2016 (2016/765). It will not be licensed by the Civil Aviation Authority as a “licensed aerodrome”/“national licensed aerodrome” under Art 212 of the Air Navigation Order 2016.

17

The Site is in a “congested area” of a city within the meaning of the Rules of the Air Regulations 2015 and the Air Navigation Order 2016. A congested area in relation to a city, town or settlement means any area which is substantially used for residential,...

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