The Court of Appeal (Sullivan, Pill and Longmore LJ) today gave judgment in R (Health & Safety Executive) v Wolverhampton City Council & Another [2010] EWCA Civ 892.

The HSE’s application for judicial review of a decision of Wolverhampton to refuse to modify a planning permission under s. 97 of the Town and Country Planning Act 1990 (“the TCPA 1990”) had been dismissed by Collins J. (see [2009] EWHC 2688 (Admin)).

The permission in question was for the construction of 4 student blocks of accommodation close to a liquefied petroleum gas facility. In May 2009 Wolverhampton determined not to revoke or modify the permission. By that time 3 of the 4 blocks had been completed and hence the permission could not be revoked, nor could it be modified in respect of those three blocks.

The Court of Appeal unanimously allowed the appeal and ordered that the decision be re-taken because Wolverhampton had not considered, as they held it should have done, whether to modify the permission to prevent the construction of the final block on which work had yet to start.

The Court of Appeal was though split on what Pill LJ said was a “question of general importance in planning law” namely whether in determining whether to revoke or modify a permission under s. 97 of the TCPA 1990 or discontinue a use under s. 102 of the TCPA 1990 regard could be had to the fact that compensation would then be payable under ss. 107 or 115 of the TCPA 1990. There were conflicting High Court decisions on this. Richards J. (as he then was) in Alnwick DC v Secretary of State (2000) 79 P&CR  130 held that such matters could not be had regard to. More recently Ouseley J. in R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] EWHC 71 (Admin) held that such matters were relevant. (Collins J. below in this case had found it unnecessary to determine which of these conflicting decisions was correct).

Sullivan LJ (with whom Longmore LJ agreed) held that compensation could be had regard to and that Alnwick was thus wrongly decided. Pill LJ dissented taking the view that Alnwick was correctly decided.

The HSE has sought permission to go to the Supreme Court on the compensation issue.

Carine Patry Hoskins appeared as junior counsel for the HSE instructed by the Treasury Solicitors Department.

James Maurici appeared for the Interested Party instructed by ReedSmith LLP

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