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The Health & Safety Executive v Wolverhampton City Council & Anor [2010] EWCA Civ 892

DATE: 30 Jul 2010

The interested party applied to the local authority for planning permission for the erection of four blocks (blocks A-D) of student accommodation containing 668 study bedrooms on a plot of land (the development). Some 95 metres away from the development there was a liquefied petroleum gas (LPG) facility. LPG was a dangerous substance within the meaning of Council Directive (EU) 96/82 (on the control of major accident hazards involving dangerous substances). 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' the authority was required to consult the claimant Health and Safety Executive on the application for planning permission for the development. It did so in September 2007, and was advised that there were sufficient reasons, on safety grounds, for advising against the granting of planning permission. Notwithstanding that warning, when considering the planning application, the authority failed to consult further with the claimant, failed to obtain its own advice as to the safety implications of permitted a substantial amount of residential accommodation, and despite being obliged to do so, failed to give the claimant advance notice of its intention to grant planning permission.

In August 2008, the local authority granted the interested party planning permission. It did not notify the claimant. The claimant first discovered that planning permission had been granted in 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 claimant became aware of the development work on three of the blocks A, B and was well advanced. Work on block D, which was the closest block to the LPG facility, had not commenced. The claimant attempted to find a solution with the authority and asked the authority to issue an order pursuant to s 97 of the Town and Country Planning Act 1990 to revoke or modify the planning permission, the purpose of which would be to disallow the development and completion of student accommodation. The claimant attempted to find a solution with the authority and asked the authority to issue an order pursuant to s 97 of the Town and Country Planning Act 1990 to revoke or modify the planning permission, the purpose of which would be to disallow the development and completion of student accommodation. Correspondence and meetings ensued.

The authority pointed out that revocation of the planning permission would require compensation. In May 2009, the authority wrote to the claimant stating that it could see no justification for revoking or modifying the planning permission. The claimant applied for judicial review challenging the authority's decision to grant planning permission and its decision to refuse to revoke or modify that permission. It sought, inter alia, an order requiring the authority to revoke the permission. It contended that the authority's decision not revoke the permission was irrational and inadequately reasoned, and was unlawful because the authority had had regard to the cost of having to pay compensation under s 107 of the Act. By the time of the hearing blocks A-C had been completed and were occupied by students.

The claimant made it clear it only sought relief in respect of block D. The judge granted the claimant declaratory relief that the authority had failed to: (i) notify the claimant that it was minded to grant permission; (ii) notify the claimant that it had granted permission; (iii) give an adequate summary of the reasons for granting planning permission, in particular by failing to give any reason for rejecting the claimant's safety objection; (iv) provide a summary of the relevant planning policies in the grant of permission. However, the judge declined to order the authority to reconsider the exercise of its s 97 powers on the basis that the relief sought was 'impossible if only because the building of Blocks A, and C had by then been completed.' The HSE appealed.

The HSE's appeal would be allowed:
(1) In the circumstances of the case, the judge had rejected the claimant's claim, in respect of block D, on a false premise. All of the judge's reasons would have been compelling reasons for the authority to decide not merely that it should not, but that it could not, lawfully exercise its powers under s 97 so as to revoke the entire permission. However, they did not justify the authority's failure to consider the exercise of its powers under s 97 so as to prevent the construction of block D
(2) Whilst it had not been irrational for the authority to refuse to revoke the entire permission (because such a course had been legally impossible) it had been irrational for the authority to fail to even consider whether to revoke/modify the permission in respect of block D alone. The authority's decision of May 2009 had been unlawful.

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