Health & Safety Executive v Wolverhampton City Council & Anor

This claim was lodged on 9 July 2009. It sought an order quashing the grant by the defendants to the interested party of planning permission on 4 August 2008. In addition, it sought an order requiring the defendants to revoke the permission following their refusal to modify or revoke it on 29 May 2009. The planning permission concerned the construction of four blocks of flats to be used for the accommodation of students attending Wolverhampton University. The site was in what is described as the Canalside Quarter of Wolverhampton and the development was regarded by the defendants as an important contribution to the regeneration of the City Centre. Indeed, the Canalside Quarter has been described in the evidence produced on behalf of the defendants as the largest regeneration opportunity in the City Centre. The development in question would, it is said, produce significant benefits, including, apart from the anticipated attraction by its presence on other developments in an area of the city which was run down, a means of assisting the further growth and success of Wolverhampton University, one of the largest in the country. There can be no doubt that there were considered to be very important advantages in planning terms of the development.

Prior to issuing proceedings the construction of three of the four blocks had been completed. As a result, the claimant has recognised that it would not be reasonable to expect the court to quash the permission. Accordingly, in the skeleton argument produced on 7 October 2009 the claimant sought to vary the relief to seek a declaration that the grant of permission was unlawful and an injunction to prevent the construction of the fourth building and to prevent occupation of the other blocks.

On 20 August 2009 HH Judge Swindells, sitting as a deputy judge of the court, directed that there be what is termed a rolled-up hearing of the claim, that is to say, a hearing in which permission is considered and, if granted, the substantive claim is dealt with immediately. The reason for that direction was largely the delay issue. While the defendant and the interested party sought to argue that the claim was on its merits unarguable, each, and in particular the interested party, relied on delay.

What has led to the claimant instituting this claim is the existence on the other side of railway lines and within 100 metres of the development of a liquid petroleum gas (LPG) facility which has been there for some 30 years. This facility comprises a number of tanks and a large storage area for cylinders. LPG is a hazardous substance specified in Schedule 1 to the Planning (Hazardous Substances) Regulations 1992. The facility is required to have and has a consent under Section 4 of the Planning (Hazardous Substances) Act 1990. This is granted by the Hazardous Substances Authority, in this case, the defendants. LPG is also a dangerous substance within the meaning of the Control of Major Accidents Hazards Regulations 1999, which implements Council Directive 96/82/E.C. relating to the control of such dangerous substances. The 1999 Regulations inter alia by Paragraph 6(2)(b) amended the Town and Country Planning (General Development Procedure) Order 1995 by adding to the table within Article 10 of that Order a new paragraph (zb). The effect of this amendment was to require a local planning authority to consult with the claimant in respect of development which inter alia involved an increase in the risk of consequences of a major accident. In addition, paragraph (d) of the table required such consultation with the claimant in respect of residential development within an area notified by the claimant to the local planning authority because of the presence within the vicinity of explosive or inflammable substances.

It is obvious that if there were a major accident at the LPG facility, the effects could be catastrophic. Attention was drawn in the material before the court to the recent accident at Viareggio in Italy when a train carrying gas was derailed and an explosion occurred killing at least 14 and injuring many more. The development in question would result in the provision overall of some 668 student bedrooms. While the development would not increase the probability of a major accident at the LPG facility, the consequences would be very much more severe since many more people would be affected if an accident occurred.

The claimant (HSE) was established by the Health and Safety at Work etc Act 1974. Its key functions are to protect against risks to health and safety arising from the conduct of operations at work and the storage and use of dangerous substances. The HSE regularly inspects installations such as the LPG facility to ensure that standards of safety are maintained so that both the probability of any accident occurring and the consequences of any accident are minimised. Nonetheless, it has to be recognised that such risks cannot be entirely eliminated.

There is set out a system to ensure that the HSE’s advice is obtained where planning permission for a development such as this case concerns is sought. The HSE asserts that the defendant failed to comply with its obligations so that the HSE’s opinion, which was that this development should not be permitted, was not properly given effect. As will become apparent, I have no doubt that there was such a failure by the defendant and so, if the claim had been made timeously, the permission could potentially have been quashed. But the delay was inexcusable and, as I will explain, that has persuaded me that it is not appropriate (even if I had power to grant them) to grant the injunctions now sought. But it seems to me that permission should be granted and, since the effect of the delay and the granting of any injunctive relief would seriously prejudice the interested party, I should consider what if any relief is appropriate having regard to s.31(6) of the Supreme Court Act 1981. Thus all the procedural steps following the grant of permission are overridden save that the claimant must pay the court fee involved.

The application for planning permission was lodged on 30 July 2007. On 6 September 2007 the defendant consulted the claimant by entering the details of the development into the claimant’s software known as PADHI (Planning Advice for Developments near Hazardous Installations). The purpose of PADHI (now PADHI+) is to seek to achieve consistency of approach. It provides for 3 zones of residual risk, labelled inner, middle and outer. The sensitivity level of the proposed development is assessed. There are 4 levels of sensitivity, dependent broadly speaking on the number of people who would be expected to be within the particular zones. PADHI will, having received the necessary information, then be used to decide whether to advise against the development. The advice may be different depending on which zone the development is in. But the claimant would usually advise against development involving more than 30 bedrooms within the inner or middle zones.

A possible weakness of PADHI+ is that it involves feeding in the correct details of the development and the zones within which it would take place. In this case, there was an error made by the defendant inasmuch as it was stated that the inner zone only extended to cover one of the four blocks. In addition, when investigating the HSE became aware that one of Carvers’ tanks was vertical and not horizontal which meant that the risk zones had to be varied. As it happens the one unbuilt block is Block D. However, further investigations made by the claimant since becoming aware of the grant of planning permission have established that the inner zone extends to most of Block C and both A & B are within the middle zone.

I do not need to go into much detail of the risk. Suffice to say that it is based on the effects of a Boiling Liquid Expanding Vapour Explosion (BLEVE). Dr Porter, the claimant’s expert in this area, has said that the claimants’ assessment of the frequency of a BLEVE for each of the built storage tanks and the road trailer used on site indicates a probability of 30 chances per million per year at the closest Blocks C and D. This would result in a probability of those blocks catching fire as a result of a fireball amounting to 10 chances per million per year. The expert instructed by the interested party, Mr Molloy, has assessed that risk at about 3.6 per million per year, which is somewhat less than that stated by Dr Porter. However, it is unnecessary for me to resolve that issue or to do more for the purposes of this judgment than to note that the probability of the occurrence is on any view very small. However, the consequences if the risk materialised would be catastrophic and would result in many deaths and serious injuries.

The errors in what was put into PADHI+ did not affect the advice given that the development should not be permitted. By letter dated 6 September 2007 the HSE said that the assessment indicated 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”. The letter concluded thus:-

“If you decide to refuse planning permission on grounds of safety, HSE will provide the necessary support in the event of an appeal.

If, nevertheless, you are minded to grant permission, your attention is drawn to … Paragraph A5 of the DETR Circular 04/2000. [This states] that:-

“Where a local planning authority … is minded to grant planning permission … against HSE’s advice, it should give HSE advance notice of that intention, and allow 21 days from that notice for HSE to give further consideration to the matter. During that period, HSE will consider whether or not to request the [Secretary of State] to call in the application for his own determination.”

For HSE to give further consideration, the Planning Authority needs to provide HSE with the full consultation details.”

Paragraph A9 of the Circular reads:-

“Hazardous substances authorities are required to inform HSE … of all their decisions on hazardous substances consent applications. Local planning authorities should similarly notify HSE of all decisions on planning applications on which HSE has been consulted. This will enable HSE to give informed advice on future applications or planning hazardous substances consent or planning permission at the site or in its vicinity.”

Paragraph A1 identifies the role of the HSE and the purpose of such notification. The HSE role is to “provide local planning authorities with advice on the nature and severity of the risks presented by major hazards to people in the surrounding area so that those risks can be given due weight when balanced against other relevant planning considerations in making planning decisions”. Reference is then made to Article 10 of the GDPO.

Behind those requirements lies Article 12 of the Council Directive. So far as material, this reads under the heading ‘Land-use Planning’:-

“1.

Member states shall ensure that the objectives of preventing major accidents are taken into account in their land use policies and/or other relevant policies. They shall pursue those objectives through controls on …,

(c)

new developments such as … residential areas in the vicinity of existing establishments where the siting or developments are such as to increase the … consequences of a major accident.

2.

Member States shall ensure that all competent authorities and planning authorities responsible for decisions in this area set up appropriate consultation procedures to facilitate implementation of the policies established under Paragraph 1. The procedures shall be required to ensure that technical advice on the risks arising from the establishment is available, either on a case-by-case or on a generic basis, when decisions are taken.”

Since the HSE is the body which is to consider the risk involved in an individual planning application and to advise on whether having regard to such risk permission should be granted, it is clear that it is important it should be able to consider the details of any particular case. Mr Griffiths in his skeleton argument suggested that the wording of A5 did not mean that advance notice to the HSE was a mandatory requirement. He argued that ‘should’ in context was no more than directory and that accordingly a failure to give such notice would not necessarily mean that a permission granted without it was liable to be quashed. I am sure that it is a mandatory requirement. First, it enables the HSE to seek full information about the particular development and to consider whether the PADHI+ advice should be maintained. It must be borne in mind that the PADHI+ advice is based solely upon the information put in by the planning authority and the general view resulting from it. No consideration is given to the value of the development or to whether measures can be taken which may permit the development subject to particular conditions. Further and most importantly the HSE can, if it decides to maintain its advice against permission, request the Secretary of State to call-in the application so that an inquiry is held. In the end, the Secretary of State will make a judgment based on the value of the development and the risk resulting from the proximity of the hazardous establishment, but that judgment will be made on a consideration of all relevant evidence which enables a proper assessment to be made. It is, incidentally, to be noted that in A9 the Circular equates ‘should’ with a requirement and I am entirely satisfied that it is consistent with the law as set out in Article 12 of the Directive that such notification is necessary. A failure to notify will not mean that the permission will necessarily be quashed. It is valid unless set aside by a competent body, in this case the Administrative Court, and, as this case illustrates, the court has a discretion whether or not to grant relief.

The defendant entered into negotiations with the interested party since it was not satisfied with the design of the development. By March 2008 it decided that it had a satisfactory design and so its officers wrote a report to Committee dated 4 March 2008. While various relevant policies which clearly supported the development were referred to, Policy EP10 of the City Council’s UDP was not. This reads, under the heading ‘Artificial Installations’:-

“Development which would be depicted as a notifiable installation will only be permitted if it is adequately separated from other land uses in order to avoid risks to health and safety. The Council will pay due regard to the advice of the HSE in relation to such risks.

A decision on any development proposed within a defined consultation distance of a notifiable installation will pay due regard to advice given by the HSE and other appropriate agencies.”

Its relevance is obvious since the development in question was within the defined consultation distance of the LPG. The only reference in the report to the LPG was in Paragraph 7.22 which reads:-

“Additionally, the site is located within the vicinity (approx 110m to the west) of the Carvers Depot, which is classified as a Hazardous Premises. All applications which are located in such proximity are to be referred to the Health and Safety Executive for comment. An electronically generated response from the Health and Safety Executive website, states that they advise against the proposal in this location. Although, this advice is not mandatory, it should not be overridden without careful consideration.”

No further reference in any subsequent report was made to this question. It is said that there was discussion of the HSE’s advice at the many meetings between the Council’s officers and the interested party. No information is given about the contents of those discussions and nothing was told to the committee members to suggest that anything needed to be done by them in considering whether despite the risk planning permission should be granted contrary to HSE’s advice. I have no doubt that there was a failure to put material matter before the committee and so its decision was flawed by a failure to have regard to all material considerations.

The defendant’s committee followed its officers’ recommendation to delegate authority to the Director for Sustainable Communities to grant planning permission subject to the satisfactory resolution of various issues. Those issues were dealt with and planning permission was formally granted on 4 August 2008. It is said by the claimant that the interested party started work on 14 July 2008 before the permission was granted. I gather that that is disputed but it does not seem to me to be particularly important in the light of what happened after permission was granted. On 10 July 2008 the Council sent to the claimant a form known as an F10 which was required by the Construction (Design and Management) Regulations 2001 which notified it that planning permission had been granted. But that form was not relevant since it was not intended to notify the claimant of a development in respect of which it was a statutory consultee and it receives tens of thousands of F10s every year. The defendant has not sought to argue that that constituted a proper notification to the claimant of the grant involved in this case or was capable of drawing its attention to the fact that the grant had been made contrary to its advice.

The defendant is required by Article 22(1) of the GDPO to include in the notice of its decision to grant planning permission “a summary of the reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission”. The notice in this case contained various ‘Notes for Information’. One of those can be regarded as its attempt to comply with Article 22(1) and to constitute a summary of its reasons for the grant. It reads:-

“In reaching the decision to approve this application, the Local Planning Authority took into account all material considerations including:

1.

The policies and proposals of the Wolverhampton Unitary Development Plan.

2.

The likely effects of the proposal on the locality, including any consultation responses received from third parties in respect of the application including any neighbours’ comments as detailed in the Officer’s Report.

3.

It was concluded that the proposal complied sufficiently with the relevant policies and would not have any other significantly adverse effects.”

While a number of conditions are imposed and the policies relevant to each of those conditions are specified, no summary of the ‘policies and proposals in the development plan which are relevant’ is given. Furthermore, as I have already indicated, no reference is made to policy EP10 which is clearly relevant.

In R(Tratt) v Horsham DC [2007]EWHC 1485 (Admin) I considered what was required for compliance with Article 22(1) and stated in Paragraph 45, that what was needed was that the reasons should deal in summary form with the substantial issues which had formed part of the consideration of the planning application. In this case, a substantial issue was the risk created by the proximity of the LPG facility and the advice given by the claimant that permission should be refused. Nowhere is that referred to. Further, there is no reference to a highly relevant policy. I have no doubt that there was a breach of Article 22(1) and Mr Griffiths did not seek to persuade me that there was not. Article 22(1) in its present form has been in force since December 2003. It is about time that planning officers were aware of it and what the courts have decided is needed. In this case, anyone interested in the grant would want to know that a safety issue had been raised by the claimant and why the defendant had decided that it was right not to follow the advice given. This could be highly material if any interested party was considering a challenge to the grant.

Mr Coppel, in addition to his arguments based on the failure to notify the claimant and the breach of Article 22(1), argued that the decision to grant planning permission was irrational. If irrational is used in the sense indicated by Lord Diplock in CCSU v Minister for the Civil Service [1985] A.C. 374 to include a failure to have regard to a material consideration, it is made out. But Mr Coppel went further and argued that the decision was perverse.

The view taken by the Council’s officers was that the Council was entitled to decide for itself where the balance lay and so all that was needed was for them to give careful consideration to the advice. They accept that they overlooked and clearly did not consider whether they should have notified the claimant so that it could more precisely assess the risks and evaluate the acceptability of those risks, and then either change or maintain its advice. Dr Porter has said that it would have maintained its opposition and would have asked the Secretary of State to call-in the application. That this would have been the claimant’s view is accepted. However, Dr Porter recognises that its view would not necessarily have prevailed. Whether or not permission should be granted was a planning decision and, having heard all relevant evidence, the Secretary of State would have to reach his own conclusion. Equally, he could have declined to call-in the application, although I imagine that would be unlikely if the claimant, the body set up by Parliament to assess whether the risk was acceptable, advised against permission and regarded the case as sufficiently important to require a call-in.

Mr Coppel makes the powerful point that the Council’s officers had no information which could counter the claimant’s safety concerns. Some enquiries were made of the interested party as to the possibility of including in the construction of the building measures to reduce the effect of any explosion, but no conditions were imposed relevant to such measures. On 13 February 2008, the interested party’s agent commented that the ‘HSE confirmed they could only advise and recognise that they have not visited the Carvers site’. Carvers are the owners of the LPG facility. The agent then asserted that the risk had in fact been lessened because there was not so much storage of chemicals and ‘the model they have relied upon has a number of design flaws’. It may well be that that information was, as Mr Coppel has suggested, inaccurate. However, in the light of the officer’s mistaken belief that it was for the Council to undertake the balancing exercise without needing to notify the HSE he felt able to advise that the advice issued need not be followed. He was wrong, but I do not think this decision can properly be categorised as perverse in the sense that it was one no reasonable person could have made.

In developing his perversity argument, Mr Coppel has in his skeleton argument suggested that the Council deliberately chose not to involve the HSE because it was determined that this development should go ahead. The suggestion is that it was known that the HSE ought to have been notified, but this was not done and it was not notified in any way which could have been expected to have alerted it to the fact that the permission had been granted contrary to its advice. I do not doubt that a competent planning officer ought to have known of the requirement to notify and ought to have referred to Policy EP10 and drawn the committee’s attention to the relevant matters. But that is not to say that he did what he did knowing that he was failing to comply with his obligations and so deliberately avoiding the possibility of a call-in which might lead to a refusal of permission which he and the Council regarded as most desirable. Bad faith is not established but a failure to do what should have been done is.

It is incidentally to be noted that the expert evidence obtained by the interested party (not, it must be said, by the Council) concludes that the risk is sufficiently small to justify the grant of permission. Thus it would be difficult to conclude that the grant was perverse, albeit it was flawed by a failure to follow the requirement imposed by the Regulations and the Circular.

Mr Griffiths submitted that the fundamental principle which is applicable is that it falls to the local planning authority or the Secretary of State if there is a call-in to decide the level of risk that is acceptable when balanced against what I have called the value of the development. The HSE’s role is advisory only and the LPA is not bound to follow that advice if persuaded that the level of risk is acceptable. In this case as probably in all developments in the vicinity of establishments which have hazardous consents the concern is with a residual risk, that is to say, an incident occurring despite the rigorous controls imposed by the HSE to avoid it. Thus the risk is, as the probabilities show, very small indeed. It is, of course, correct that the ultimate decision is a planning decision. But that decision must be taken having full regard to the HSE’s evaluation of the acceptability of the risk and the HSE must be able to investigate an individual case in order to form a proper view. This is why the HSE must be notified and has the right to request a call-in. It is the body which has the expertise and is tasked with the duty to consider following a full investigation of all material factors whether it is right to maintain its advice against permission. If it decides that it should, it will request a call-in and there will then be an enquiry at which all material evidence both for and against will be considered. Mr Griffiths mentioned an application to extend the capacity of the Oval Cricket Ground opposed by the HSE because of the proximity of gasholders. In the end, the development was approved despite the HSE’s objections. All that that shows is that the HSE’s objections may not prevail, but it does not mean that a local planning authority can properly reach its own evaluation of the acceptability of the risk enabling the HSE to make full investigation for itself and reach a conclusion. If, notwithstanding the HSE’s evaluation of the acceptability of the risk, the local planning authority maintains its decision that permission should be granted, it will be subject to the Secretary of State’s power to call-in. In this way and only in this way can the public be properly protected against the risk that a disaster might occur.

The HSE first became aware of the grant of planning permission when it received an email from Mr Carver, the owner of the LPG facility. This was headed “Student Accommodation – being built in our consultation zone”. Mr Carver was, of course accustomed to dealing with the HSE because of its regular monitoring of the facility. The email read:-

“I believe H&SE are aware of a development of student accommodation for 900 people which is being built near to our site and is within the middle zone of the consultation zone.

I understand from Wolverhampton City Council that H&SE advised against giving the development planning permission, however the Council decided to go against your advice, and have granted planning permission. I understand you have the option of requesting the decision is “called-in” for consideration by the Secretary of State.

The largest of the blocks being constructed is 25 storeys (76m) high, and although I am not an expert on gas blasts, I would assume such a structure would be very vulnerable to a gas blast.

Can you tell me if you have decided to refer this development for consideration by the Secretary of State?”

Mr Carver has said that his company was not notified of and certainly was not consulted on the application. There is a dispute about this in so far as notification is concerned. I do not need to resolve this issue since, as I have already indicated, the Council’s failure in respect of the HSE is sufficiently serious to lead to consideration of whether the court should grant relief.

The HSE reacted to the email by Dr Porter sending one to the Council on 23 December 2008 which read:-

“Given the Xmas break, HSE will not be able to examine the position in detail immediately but you are advised that we will do so early in the New Year and then consider what course of action to take.”

There was no urgency in this response. It would not have taken much effort to check Mr Carver’s statement and, if that had been done, the HSE would have ascertained that one block was within the inner zone and no advance notice had been given by the Council. Mr Carver said that the blocks were being constructed. In those circumstances, the HSE should, if really concerned that there might be an unacceptable risk in allowing the planning permission to stand, have discovered when the permission had been granted and how far the construction had gone. It should have been obvious too that the interested party should have been notified that there might have to be a challenge to the permission.

By the time representatives of the HSE and the Council met on 7 January 2009, the HSE had discovered that a mistake had been made in calculating the zones which PADHI+ had identified and that the inner zone extended to cover most of Block C and the middle extended to both A and B. This meant that the advice against permission was more pressing. Further, the Council were informed that the HSE had taken legal advice on the procedure and merits of bringing a claim for judicial review to seek to quash the planning permission.

Any competent legal adviser would have known that the court has made it clear that challenges to grants of planning permission must be brought promptly since the recipient of the permission is entitled to act on it and may incur considerable expense. In this case, the HSE was not aware of the grant until December, more than 4 months after it was given. Thus time would have had to have been extended and the need for immediate action was all the more clear. In addition, if a claim for judicial review is being considered, it is essential that the recipient of the permission is notified as soon as possible so that he is aware of the possibility and so, depending on the circumstances, will know that he proceeds to implement at his peril. The interested party was not in fact notified of a possible claim until it received a copy of the pre-action protocol letter on 22 June 2009. If this claim had been lodged in January 2009, following an immediate warning to the interested party in December 2008, the court would have had to consider carefully whether notwithstanding the delay caused by a failure to notify the HSE permission should be granted with a view to quashing the planning permission. As it is, the claim was not brought until over 11 months had passed since the grant of planning permission and some 7 months after the HSE had been made aware of it.

The Court of Appeal has recently in Finn-Kelcey v Milton Keynes BC [2009] Env. L.R.17 underlined the importance of prompt challenge to grants of planning permission. Even if the court decides to grant permission (for example, because of the failure to comply with Article 22(1) of the GDPO and the need for proper reasons to be placed on the Register, as I have decided in this case), section 31(6) of the Supreme Court Act 1981 has to be considered. This provides that relief may be refused on the ground that there has been undue delay and it would be detrimental to good administration or likely to ‘cause substantial hardship to or substantially prejudice the rights of any person’ if relief were granted. The evidence, which is not challenged, from the interested party is that if, having constructed 3 of the 4 blocks, it could not proceed to their occupation and the eventual construction of the fourth block it faced commercial ruin. It is undoubtedly an innocent party. There was no reason why it should have appreciated that the Council had made mistakes and it had received no notification from the HSE that there was a possibility of a claim so that it could not have taken any steps (albeit it is difficult to see that there were any) to seek to protect itself against any difficulties.

My only concern in refusing to quash the planning permission was that there might as a result be an unacceptable risk to those occupying the flats. However, the failure by the HSE to take any positive action before July 2009 indicates that it could not have believed that the risk was indeed, at least in the relatively short term, unacceptable. In so finding I am assuming that it has had proper regard to its duty to protect the public from unacceptable risks of harm. That is an assumption the court is entitled to make.

The excuse given for the delay is that the HSE was endeavouring to avoid litigation by suggesting to the Council that it should instead revoke the permission or take steps to relocate the LPG facility. That is no good excuse for the failures I have identified. Mr Coppel used a word ‘suboptimal’ to describe the HSE’s actions. I confess it is new to me. I prefer to describe them as unsatisfactory.

The effect of my refusal to quash the planning permission is that it remains valid and the interested party is entitled to put it into effect. However, the HSE also maintains that it can achieve its objectives by a challenge to the refusal of the Council to revoke or take some other action to modify the permission. It is therefore necessary to see what occurred.

On 23 February 2009, more than a month after the initial meeting on 7 January (at which Dr Porter had expressed the view that there was a real concern about public safety and, in his note following it, described the development as a major hazard), the HSE wrote to the Council explaining their concerns about the failure to notify and indicating that they would have requested a call-in. The letter continued:-

“Given that HSE was not afforded the opportunity to request a call-in at the time that Wolverhampton City Council was minded to grant planning permission and the serous safety concerns in relation to the development that still remain, HSE requests that Wolverhampton City Council issues 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 zones of Carver Ltd (liquefied petroleum gas installation).

I would be grateful if, as a matter of urgency, you could advise me whether Wolverhampton City Council will issue an order under s.97 TCPA 1990, so that HSE can consider the options available.”

Section 97 of the 1990 Act enables a local planning authority to revoke or modify a permission to such extent as they consider expedient having regard to the development plan and to any other material considerations. But the power cannot be exercised if building operations permitted by the development have been completed or, as respects any building operations permitted, to the extent that they have been carried out: see s.97(3)(a) and (4). Thus so long as building operations continued, the use of s.97 became more difficult. Furthermore, s.107 of the Act requires the payment of compensation to the recipient of the permission. Such compensation in this case could have run to many millions of pounds.

The Council responded on 3 March 2009. It asked inter alia whether the HSE had considered any acceptable modifications. On 16 March 2009 the HSE suggested that the Council discuss with Carver Gases Ltd ‘an amendment to the Hazardous Substances Consent that is sufficient to significantly reduce the land use planning consultation zones around the site’. It was said to be necessary for the Council “to prevent building of the accommodation within 185 metres of the LPG” site. A meeting was suggested, but could not be set up before Easter and 6 May 2009 was suggested by the Council. The HSE said that would mean that ‘the development will move closer to completion’ and so the Council should ‘make arrangements for the development to be suspended’. No indication is given of what power the Council would have to suspend the development. In reality there was none.

A meeting was in fact held on 9 April 2009. Blocks A, B and C had by then been almost completed and were intended to be occupied from October 2009 (the beginning of the academic year). Three options were put forward by the HSE to resolve the issue. These were:-

“1.

Revoke the Planning Permission for blocks in the Inner and Middle Zones.

2.

Move Carvers from this site.

3.

Reduce the LPG inventory at the Carver’s Site and amend the Hazardous Substance Consent to a lower level.”

A Council’s representative stated that Option 1 would be most unlikely to be carried out ‘because of the potentially high costs of doing so’. It would in any event almost certainly have been impossible since the three blocks had already by then been virtually completed. It was recognised that Options 2 and 3 would involve a dialogue with Carvers and that compensation would be likely to be payable. The HSE noted that a possible alternative site for Carvers had been identified.

By letter received by the HSE on 5 May 2009, the Council asked for a detailed explanation of the risks and information about the existing Carver’s installation. The material parts of the letter read:-

“To assist the Council in determining how to take this matter forward I would be grateful for a full response in respect of the following matters;

Risk Assessment

Please provide a detailed explanation of the risks posed to the Development, as identified at the meeting including;

a.

The time of day when it is considered the risk is at its most acute and why.

b.

The probability of the risk occurring.

c.

How, in assessing the risk, the occupancy rates of the 3 zones affect the HSE’s assessment of the risk.

d.

The calculation made using your criteria in this case and a detailed explanation about how the figure was derived in this case.

e.

The extent to which the geographical characteristics of the locality surrounding the site are considered in assessing the level of the risk posed.

f.

The extent to which pre existing uses within the inner zone (i.e. mainline station, coach station and pedestrian thoroughfares) are considered in assessing the level of risk posed.

The LPG Installation at Carvers

In terms of the existing installation at Carvers please provide;

g.

Any information you have as to the frequency that lpg tankers attend the Carvers Site together with any information as to the levels of lpg routinely stored within the tanks at the site.

h.

Any information that may be held by the HSE as to the usage of the lpg tanks by vehicles other than tankers.

i.

Whether if less than 25 tonnes of lpg were stored at Carvers the installation would have still posed such a risk that the HSE would have “advised against” in respect of the Planning permission for the site.

At our meeting you helpfully indicated that you would be willing to speed up the HSE response time in giving technical advice in this case both in your dealing with us and if Carvers were to make an application to store lpg at their Neachells Lane site.

We look forward to hearing from you further and would be grateful if you would confirm that it’s the HSE’s intention to continue to work with the Council to achieve an appropriate resolution to this matter.”

As is apparent, the Council seemed not averse to seeing what could be done to resolve the issue. It is obvious that the LPG facility is likely to create a real difficulty in achieving a comprehensive redevelopment of the Canalside Quarter. The plan for this redevelopment was published in December 2000. In paragraph 5.38, this was stated under the heading ‘Implementation Priorities’:-

“Attention should focus on establishing a limited range of infrastructure and environmental works, frameworks for key future development and, initially, one principal development opportunity. Also in the shorter term action should be pursued to remove the hazard zone generated by aspects of Carvers’ current activities.”

Almost 9 years have now passed and one does wonder what length of time was being indicated by the “shorter term”. However, I am told that the Council recognises the need to remove the LPG facility and no doubt discussion will be held with Carvers to try to achieve a sensible solution. It must be obvious that any future Canalside Quarter development proposed within the hazard zones will be likely to face opposition from the HSE and a possible call-in.

On 8 May 2009, the HSE sent an email to the Council which read:-

“I would like to take the opportunity to reiterate that it is important that this issue is resolved as a matter of urgency. HSE’s safety concerns still remain; to this end it does not wish the development in the inner zone to begin. HSE requests that Wolverhampton City Council provides an undertaking that the development in the inner zone will not commence, and development in the middle zone will not continue until it has reached a decision (and notified HSE in writing) on whether it will grant a revocation or modification order further to the terms outline in Peter Baker’s letter dated 23 February 2009.

Wolverhampton Council may want to make the developer aware of this matter.

HSE wishes to work with Wolverhampton Council to ensure that its safety concerns in respect of this development are allayed.”

Quite how it was thought that the Council could give the undertakings requested is not stated. It was asking the Council to do the impossible. Finally, by letter dated 18 May 2009, the HSE wrote to the Council giving information requested in the letter received on 5 May and stating:-

“HSE wishes to resolve this issue as a matter of urgency and would be grateful if Wolverhampton City Council could notify HSE in writing by Monday 25 May in respect of whether it will 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. As outlined in Peter Baker’s letter dated 23 February 2009, HSE was not provided with the opportunity to request the Secretary of State to call in this application for her own determination when Wolverhampton City Council was minded to grant planning permission, therefore serious concerns to the development still remain.

As you are aware, the purpose of granting an order pursuant to s.97 TCPA 1990 would be to disallow the development and completion of student accommodation, particularly those building in the inner and middle zones of Carver Ltd (liquefied petroleum gas installation).

If Carvers Ltd approached HSE for advice, it could advise on the suitability of the Neachells Lane site for a transfer of Carvers LPG operations, provided that such a request is received in the next few weeks.

In the meantime, HSE would be grateful if Wolverhampton City Council could agree to an undertaking that the development in the inner zone will not commence, and development in the middle zone will not continue until it has reached a decision (and notified HSE in writing) on whether it will grant a revocation or modification order.”

The response was given on 29 May 2009. The letter stated:-

“The Council has now taken some preliminary legal advice and from a careful consideration of all of the information available can see no justification for revoking or modifying the planning permission in question. We are currently awaiting further information together with the substantive advice and we will keep you informed.

In the meantime, with reference to your letter of 18 May, paragraph (g), we would be grateful if you could liaise with Carvers to secure their consent and let us have the information duly requested as soon as possible as we consider it to be relevant.”

It is this decision which is challenged in an endeavour to avoid the temporal difficulties in challenging the grant of planning permission. While there is a refusal to modify or revoke the permission, the possibility of moving Carvers or ensuring a modification of their activities is not rejected.

The relief sought was a revocation of the permission. That itself was impossible if only because the building of Blocks A, B & C had by then been completed. In any event, it was entirely inappropriate inasmuch as the planning permission was not being quashed and the interested party would be seriously affected and probably put out of business even if compensation was eventually payable. The impact on an interested party of a revocation or modification is a relevant consideration: see Vasiliou v Secretary of State for Transport [1991] 2 All ER 77. But Mr Coppel submits that the cost of compensation is not a relevant consideration in deciding whether a modification or revocation should be issued. He relies on a decision of Richards J in Alnwick DC v Secretary of State (2000) 79 P&CR 130. I do not need to decide whether this is correct since the impact on the interested party coupled with the completion of three of the four blocks and the reasonable view that the HSE’s failure to take immediate action shows that the risk could not be regarded as immediate entirely justifies a refusal to revoke or modify. Certainly, the refusal cannot be regarded as irrational.

No doubt realising that the relief claimed would not be granted, Mr Coppel in his skeleton argument sought to vary it. This led to understandable complaints by the defendant and the interested party. A claim can be varied without leave before permission is considered albeit other parties must be given proper notice to enable them to deal with any such variations. At the hearing, Mr Coppel refined his relief claims to seek four declarations and an injunction against the interested party to prevent it from commencing construction of Block D or occupation of any part of Block C until a full appraisal of the safety aspects was completed. In addition, an order was sought quashing the refusal to revoke or vary (presumably modify) the permission pursuant to s.97 of the 1990 Act. Finally, a further injunction was sought prohibiting the interested party from commencing construction of Block D until the Council had retaken the decision in relation to revocation or modification.

The first four declarations identify the unlawful failures of the Council to notify the HSE that it was minded to grant planning permission, the unlawful failure to notify the HSE that it had granted permission, the unlawful failure to give an adequate summary of its reasons for granting permission and its unlawful failure to provide a summary of relevant policies. With the excision of the word ‘unlawful’, I am prepared to grant those declarations, although it may be that they are of limited practical benefit to the HSE. They do, however, make clear for the future and for anyone interested the need to comply with the Circular.

I asked Mr Coppel to show me any authority to suggest that the court could make a final injunction against an interested party, particularly where that party was not a public body. Unsurprisingly, he could not. The Administrative Court is concerned with claims against public bodies, not private persons or corporations. No doubt the court has power to make interim orders which are designed to ensure that it can properly deal with a claim and that such orders may (provided they are able to make representations) affect private persons or corporations. Mr Coppel suggested the same would apply to final orders, provided they would not have permanent effect. That was and I think Mr Coppel recognised that it was a hopeless argument. The reality is that even if I thought there was any merit in the claim, and I do not, I would have no power to grant the injunction that he seeks against the interested party. The same would apply to any order which affected Carvers. They have neither been notified of the claim nor joined in it as an interested party. It would be a misuse of the power to deal with a planning permission which was granted when proper procedures were not carried out for the court to use the claim to affect a third party who was not involved in that claim. The Council will have to consider how to remove the risks which the LPG facility imposes. But this claim is not the appropriate vehicle nor is the HSE the right body to deal with it directly.

For the reasons I have already given, I am not prepared to declare that the Council acted irrationally. Further, since I do not accept that the Council should be required to reconsider the exercise of its s.97 powers, a declaration to that effect and any consequential order is not appropriate.

The only order that I make that requires the Council to take any action is that it must give a proper summary of its reasons for granting permission and a summary of the relevant policies (obviously including EP10) so that they can be inserted in the register.

I do not want to leave this case without expressing my concern at the unnecessary quantity of paper which has been put before me. There were five lever arch files of evidence, together with full skeleton arguments from counsel for all three parties. No more than one file was needed. It is a waste of money and an unnecessary burden on the court to copy whole documents when only one or two extracts are relied on. In addition, there was an excessive volume of evidence, much of which went to the factual merits of the case rather than to the legal issues. In addition, there were four lever arch files of authorities. As perhaps this judgment shows that was ridiculous. I hope in considering any detailed determination of costs (if necessary) a costs judge will bear these comments in mind.