QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF UNICOIN (DARTFORD) LIMITED||Claimant|
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT|
|(2) DARTFORD BOROUGH COUNCIL||Defendants|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Philip Coppel (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Caroline Bolton (instructed by Dartford Borough Council) appeared on behalf of the Second Defendant (for judgment only)
HTML VERSION OF JUDGMENT
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"A significant proportion of the site lies within the inner land use planning zone determined by the entitlement of Glaxo Smith Kline to store hazardous substances on its northern site (HSE ref: H3492). Given the location and density of the proposed residential development it is considered inadvisable to locate this development here where the level of residual risk for this development is considered unacceptable. The proposal therefore fails to sufficiently taken into account the need to safeguard public safety."
The main issue and evidence before the Inspector
"The main issue in this appeal is whether the proposed development would unacceptably increase the number of people exposed to the risks associated with proximity to the adjacent site on which hazardous chemicals are stored."
"3. Much of the appeal site is included within the Inner Consultation Zone (defined by HSE according to its PADHI system) around the Glaxo Smith Kline (GSK) hazardous installation which occupies land to the north-east of the site, across the River Darent/Dartford Creek. The Inner Zone represents the area within which the risk of serious injury, including that of fatality, is assessed at 10.0 chances per million (cpm). HSE advises against the proposed development.
4. In defining the Consultation Zones, HSE used information supplied by GSK in connection with its hazardous substances consent (deemed consent) under the Planning (Control of Major-Accident Hazards) Regulations 1999 (SI 1999 No.981). The hazardous substances deemed consent for the GSK site is for quantities of chemicals in broad categories - very toxic; toxic; oxidising; flammable; highly flammable; and extremely flammable. In the absence of information not only on specific chemicals but also on the volume and location of fixed vessels, HSE undertook its assessment of the risks associated with the installation for the purpose of defining the Consultation Zones, and its risk assessment of the appeal proposal, according to 'exemplar' substances and according to the maximum quantity of the hazardous substances permitted by the deemed consent; and made assumptions about the size of fixed and moveable containers according to the Regulation applying to deemed consents."
"4.1. Our records indicate that in 1992 and 2000, Hazardous Substances Consent was deemed to be granted for the following classifications of hazardous substance: very toxic, toxic, highly flammable, flammable, oxidising and substances dangerous to the environment at the GSK Dartford site... Our records also show that in 2003 and 2004 variations to the Hazardous Substances Consent were granted by Dartford Borough Council at the same site...
4.2. HSE's advice to Dartford Borough Council, in relation to the deemed and express Hazardous Substances Consents, was based on predictive assessments of toxic, explosive and flammable hazards. These assessments were undertaken by HSE's Methodology and Standards Development Unit (MSDU, now the Risk Assessment and Process Integrity Unit). 4.3. Storage operations for toxic substances at the GSK site have a number of associated hazards, a major one being the accidental release of a very toxic liquid from a movable container, and the subsequent evaporation of the spilt pool. MSDU considered the significance of this major accident hazard by modelling the consequences of the harmful effects to an exposed individual. Because the deemed consent entitlement held by GSK does not identify the toxic substances that can be stored and used on site the HSE risk assessment has to identify an envelope of risks that represents the most hazardous substances within the toxic classification. This consent entitlement allows GSK to vary the actual substances and quantities within the toxic classification at any time without the requirement for further notification. It is not practicable for HSE's advice to keep track of such changes and therefore an envelope of risks approach is used.
4.7. For the purposes of providing land-use planning advice, and in relation to the planning application under consideration, only the CD generated by the North area of the site is of concern. As explained above this CD is divided into three development control plan zones consisting of an inner, middle and outer zone. The middle and outer zones are defined by the Consent for movable containers of very toxic and toxic substances. The hazard and the risk comes from the inner zone overlap and hence the inner zone is defined by the envelope of the inner zone resulting from the Consent for highly flammable liquids and the inner zone resulting from the Consent for movable containers of very toxic and toxic substances... 5.2. The whole of the site lies within the CD of GSK Ltd. The part of the development for residential use extends across the inner and middle zones, and more than 50% of the site lies within the Inner Zone.
5.3. As noted above, it is HSE's policy to advise against significant housing in the consultation Inner Zone. This policy (among others) is reflected in the advice generated by PADHI and therefore in HSE's response to the consultation on the applicants' proposal...
6.1. In the process of forming a judgement, HSE has recognised the views of the Advisory Committee on Major Hazards as expressed in paragraphs 108 and 109 of their Second Report (Appendix J) which reads as follows:
'108 .... The HSE is also frequently asked to comment on proposals to develop or to redevelop land in the neighbourhood of an existing hazardous undertaking where there may already be other land users which are closer and possibly incompatible. In these cases HSE tell us that it takes the view, which we fully endorse, that the existence of intervening development should not in any way affect [the] advice that it gives about the possible effects of that activity on proposed developments which may appear to be less at risk than the existing ones.'
'109 .... The overall objective should always be to reduce the number of people at risk, and in the case of people who avoidably remain at risk, to reduce the likelihood and the extent of harm if loss of containment occurs .......'
7.1. In the light of its assessments of the hazardous installation and of the development proposal, which took into account the size, nature and other characteristics of the proposed development, HSE considers the residual risk at the development site to be sufficiently high for HSE to advise against the granting of planning permission for application ref DA/07/00298/FUL."
"The planning legislation rightly allows the site operator some flexibility in making changes to processes and activities on site. It would be unreasonably burdensome on GSK to attempt through the planning system to control every new chemical process, or every new chemical substance on site, so long as the overall risk was not substantially increased. HSE and the EA have the powers and technical expertise to assess, and if necessary prevent changes which did unreasonably increase the risk, either to people on site, or the surrounding area.
The consequence of this, is that the information required under the planning legislation is different, and more limited than that provided to HSE under the COMAH regulations. Fortunately, we have a copy of the COMAH list, provided by HSE to Dartford Council. It is helpful to compare the information provided under the two sets of regulations
|Category||Consent quantity PGHMR||GOMAH schedule|
Also highly flammable
|Highly flammable spont ignitable||13||13|
|Very toxic||40||8 including NaN3 3.5 Me-S02Cl 3.5 POCl3 3 PCI5 11|
also highly flammable
|Environment danger R.5||cyclohexane 6t also highly flammable|
All numerical values relate to quantities in tonnes".
"The operator shall notify the competent authority forthwith in the event of -
(a) there being any significant increase in the quantity of dangerous substances notified -
(i) under this regulation...
(b) there being any significant change in -
(i) the nature or physical form of the dangerous substances so notified
(ii) The processes employing them, or
(iii) any other information notified to the competent authority in respect of the establishment..."
"It can be argued that under PCMHR, GSK can make many changes which would increase the toxicity of the substances they handle, and the offsite risk. The planning system quite generally assumes that once permission is given, it can be exploited to the fullest extent within the defined scope. Future changes can be controlled by conditions attached to the permission but it is effectively impossible either to retrospectively rescind permission, or impose new conditions.
Health and safety legislation does not work in this way. HSE visit major sites like GSK regularly and can raise new issues with the site occupier at any time. There is no automatic assumption that just because an activity was legal and acceptable at one date, that it will always be so. New requirements can and are imposed, as a consequence of new knowledge about the risks, advances in the technology available to control those risks, or new regulations.
In the case of potential changes at the GSK site the COMAH regulations give HSE a powerful tool to control those changes. If new storage arrangements or processes were being introduced the safety case would need to be reviewed, to see that it was still valid. Specially HSE would expect GSK to consider the risks associated with any new activities involving very toxic substances. When introducing new processes, GSK would need to take account of the principles of inherent safety, and process intensification. Inherent safety is the principle of avoiding hazards altogether, e.g. by not using very toxic materials. Process intensification is a principle of minimizing the amount of dangerous material in a process at any one time as a way of minimizing the risk if the process goes wrong. These principles are formally set out in the COMAH guidance.
There can be no absolute assurance that GSK would not introduce new materials and risks that would increase the offsite hazard from that currently existing, but health and safety legislation gives HSE considerable ongoing powers to prevent this, unless a process had to be done on this site, and no safer production method was available."
1. He recognised that the information to which he had access was incomplete;
2. It was very likely that a risk assessment using the chemicals actually on site (ie as notified in 2000) would reduce the extent of the inner zone within which the conclusion would be to advise against residential development;
3. As Mr Dinkin confirmed, Mr Kershaw did not produce any plan with revised zones to show what the modified area would be, or how it was derived.
4. He relied upon COMAH Regulations in order to control the future potential for the existing level of risk, as he assessed it, to be increased.
"9. The hazardous substances consent controls are designed to regulate the presence of hazardous substances so that they cannot be kept or used above specified quantities until the responsible authorities have had the opportunity to assess the risk of an accident and its consequences for people in the surrounding area and for the environment. They complement but do not override or duplicate, the requirements of the Health and Safety at Work etc Act 1974 and its relevant statutory provisions (defined at s.53 of that Act) which are enforced by the Health and Safety Executive. Even after all reasonably practicable measures have been taken to ensure compliance with the requirements of the 1974 Act, there will remain a residual risk of an accident which cannot entirely be eliminated. These controls ensure that this residual risk to persons in the surrounding area and to the environment is properly addressed by the land use planning system."
It is thus clear that the circular gives advice on how to assess, under the planning system, the "residual risk" posed by sites using hazardous substances, after the controls under the 1994 Act and related legislation had been applied by the HSE.
"In submitting an application, applicants are required to list first any named substances appearing in Part A of Schedule 1 for which they are applying for a hazardous substances consent, then those in Part B and finally those in Part C. Where they are applying for a consent in respect of substances falling within Parts B or C of the Schedule, they may list them under the relevant category or description or they may choose to list them specifically by name. While this may not always be practicable, applicants should be encouraged to list the individual substances and amounts for which consent is being sought. This will ensure HSE and the Environment Agency are better able to assess any risks from the proposed presence of the hazardous substances and to apply appropriate conditions. For risk assessment purposes HSE will treat unspecified generic substances on the basis of exemplar substances within each category."
"The role of HSE and the Environment Agency is to advise the hazardous substances authority on the risks arising from the presence of hazardous substances. HSE has the expertise to assess the risks arising from the presence of a hazardous substance to persons in the vicinity; the Environment Agency has the expertise to assess and advise upon the likely risks arising to the environment. However, the decision as to whether the risks associated with the presence of hazardous substances, either to persons or to the environment, are tolerable in the context of existing and potential uses of neighbouring land is one which should be made by an elected authority (the hazardous substances authority)."
"HSE's role in the land use planning system is to provide local 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."
Paragraph A4 provides:
"HSE's advice to planning authorities in respect of proposed developments in the vicinity of hazardous installations is based on the following general principles:
• the risk considered is the residual risk which remains after all reasonably practicable preventive measures have been taken to ensure compliance with the requirements of the Health and Safety at Work etc Act 1974 and its relevant statutory provisions..."
"In view of their acknowledged expertise in assessing the off-site risks presented by the use of hazardous substances, any advice from HSE that planning permission should be refused for development for, at or near to a hazardous installation or pipeline, or that hazardous substances consent should be refused, should not be overridden without the most careful consideration."
Paragraph A7 reads:
"For each type of development HSE's advice to local planning authorities will take account of the maximum quantity of a hazardous substance permitted by a hazardous substances consent and any conditions attached to it."
The Decision Letter
"5. More detailed information on the specific substances present on the GSK site is available in the hazardous-substance Notification which GSK gave to HSE under the COMAH Regulations (SI 1999 No.743). That Notification lists specific substances rather than categories of substances - though it seems that under Regulation 6(2) and Schedule 3 the information notified is required to be sufficient to identify the dangerous substances or category of dangerous substances notified [my emphasis]. Nevertheless, the evidence is that those chemicals which are specified in the GSK Notification behave in a manner which constitutes a lesser hazard than would be posed by the exemplar substances (which are not listed as present on site). The Appellant argues that this is a material consideration of such weight that, in the careful consideration required by Circular 4/2000, it ought to override the advice from HSE that the proposed development should be refused.
6. However, in the GSK Notification under SI 1999 No.743 there appears an inconsistency, in that 8 tonnes overall of very toxic substances are recorded, but the quantities of the 4 chemicals specified under that heading add up to 21 tonnes, not 8 tonnes. The Notification under SI 1999 No.743 may not therefore constitute a wholly accurate measure of the chemicals and quantities present on the GSK site. Moreover, and significantly, the Notification merely represents the 'snapshot' situation at the point in time at which it was made by the current operator: whereas the Hazardous Substances Consent granted under the Planning (Hazardous Substances) Act 1990 and the Planning (Control of Major Accident-Hazards) Regulations 1999 (SI 1999 No.981) provides an entitlement which runs with the land (Circular 4/2000 ¶72). Whilst ¶37 of the Circular states that applicants should be encouraged to list the individual substances and amounts for which consent is being sought, there is no requirement for them to do so.
7. Under the terms of the hazardous substances consent for the site, there is considerable freedom to introduce substances not present at the time of Notification, and which behave in a manner approaching the greater degree of hazard represented by the exemplar substances. In assessing the potential effects of (exemplar) toxic spillages, releases and fires (taking into account the scope of the consent to allow the use of moveable containers on the GSK site) HSE made reasonable assumptions. Though inclining to caution, those assumptions do not represent the worst possible outcome in every instance, and are not cautious to an unrealistic or unreasonable degree.
8. The controls available to HSE as competent authority under the Health and Safety at Work Act 1974 and the COMAH Regulations (SI 1999 No.743) include the ability to require safety reports, on-site and off-site emergency plans, provision of information to the public, inspections and investigations to ensure that the operator has taken appropriate measures to prevent major accidents and to limit their consequences. But those controls do not allow HSE to revoke or modify the hazardous substances consent, which is issued under the Planning (Hazardous Substances) Act 1990 and the Planning (Control of Major-Accident Hazards) regulations 1999 (SI 1999 No.981), and for which the HSE is an advisory body and not the hazardous substances authority. Nor do they eliminate the residual risk which it is the concern of SI 1999 No.981 to address via the land use planning system. Consequently, little weight should be attached to the existence of those controls under SI 1999 No.743. Little weight should be accorded to the fact that, at the time of Notification, the specific chemicals then present on the GSK site happened to give rise to a lesser level of risk than would the exemplar substances. That weight is especially slight given the lack of response by GSK to the Appellant's request for information; the lack of confirmation or suggestion by GSK that it has any intention of revising the current hazardous substances consent in line with its most recent Notification; and indeed the absence of any representations by GSK to the Inquiry.
9. The Inner Consultation Zone includes a small area of existing residential development, which largely pre-dates the definition of the Zones. HSE accepts that the current risks given the number of existing residents are tolerable but points out that each additional dwelling would increase the number of people exposed to residual risk: that is, to the residual risk which remains after all reasonably practicable preventative measures have been taken to ensure compliance with the requirements of the Health and Safety at Work Act 1974 and its relevant statutory provisions (including the COMAH Regulations at SI 1999 No.743). In introducing 96 additional dwellings (which would replace a former treatment plant now demolished), the appeal proposal could lead, given an average occupancy rate of 2.5 persons per dwelling, to the exposure of around 240 additional people to the residual risks associated with the full implementation of the hazardous substances consent on the neighbouring site currently occupied by GSK.
10. In comparison with the small area of existing residential development within the Inner Zone, the appeal site is significant in its size and in the potential number of its future residents. Given the proposed mix of dwellings (including an element of affordable housing) future residents would be likely to include both young children and elderly people, who are inherently more vulnerable. In these circumstances I conclude that the proposed development would unacceptably increase the number of people exposed to residual risk associated with proximity to the adjacent GSK site on which the presence of hazardous chemicals has consent."
"Every operator shall take all measures necessary to prevent major accidents and limit their consequences to persons and the environment."
I note that the focus of the regulation relates to "major accidents", as defined in Regulation 2. I accept the submission on behalf of the Secretary of State that the regulation does not purport to cover all aspects of risk or hazard to the public.
"... those controls do not allow HSE to revoke or modify the hazardous substances consent... and for which the HSE is an advisory body and not the hazardous substances authority."
Strictly speaking, as Mr Dinkin said, the Inspector was correct, but under Section 14 of the Planning (Hazardous Substances) Act 1990, the local planning authority could modify or revoke such a consent, albeit subject to a potential liability to pay compensation under Section 16. However, Mr Dinkin did state that the claimant did not raise the likelihood of those powers being exercised by Dartford Borough Council at the inquiry. Therefore, in my judgment, nothing turns on this possible criticism, that he suggested, of that part of paragraph 8 of the decision letter.
"Nor do they eliminate the residual risk which it is the concern of SI 1999 No.981 to address via the land use planning system."
In my judgment, self-evidently what was said by the Inspector was correct. Her sentence accurately reflects the definition of residual risk.
"Consequently, little weight should be attached to the existence of those controls under SI 1999 No.743."
However, in fairness that sentence should be read together with the following sentence, which states:
"Little weight should be accorded to the fact that, at the time of Notification, the specific chemicals then present on the GSK site happened to give rise to a lesser level of risk than would the exemplar substances."
"HSE accepts that the current risks given the number of existing residents are tolerable but points out that each additional dwelling would increase the number of people exposed to residual risk: that is, to the residual risk which remains after all reasonably practicable preventative measures have been taken to ensure compliance with the requirements of the Health and Safety at Work Act 1974 and its relevant statutory provisions (including the COMAH Regulations at SI 1999 No.743)."
That sentence then leads on to the rest of the Inspector's analysis and reasoning in paragraphs 9 and 10 of the decision letter. In particular, in paragraph 10, the Inspector expressed her judgment about the potential vulnerability of some of the future residents who might be expected to live in the proposed dwellings, including young children and elderly people. She went on to express her overall conclusion that the proposed development would "unacceptably increase the number of people exposed to residual risk associated with proximity to the adjacent GSK site on which the presence of hazardous chemicals has consent".