QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Health & Safety Executive
|- and -
|Wolverhampton City Council
Victoria Hall Limited
Mr Robert Griffiths, Q.C. & Ms Estelle Dehon (instructed by the Legal Services of the Council) for the Defendant
Mr James Maurici & Ms Jacqueline Lean (instructed by Reed Smith LLP) for the Interested Party
Hearing dates: 14-15 October 2009
Crown Copyright ©
Mr Justice COLLINS :
"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.
"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."
"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."
"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.
"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.
"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.
"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.
"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.
"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;
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."
"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.
"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 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.