Case Preview: The Health and Safety Executive v Wolverhampton City Council
25 Monday Jun 2012
The case of The Health and Safety Executive v Wolverhampton City Council, heard in the Supreme Court on 13 June 2012, is concerned with whether the amount of compensation payable should be taken into account when determining whether a revocation or modification order should be made by a planning authority under the Town and Country Planning Act 1990, ss 97 and 102.
In 2007 a planning application was made to Wolverhampton City Council for four blocks of student accommodation to be built close to a liquefied petroleum gas facility- a dangerous substance. The Health and Safety Executive advised that there were sufficient reasons on safety grounds to refuse the planning application.
Nonetheless the Council, without notifying the HSE that it either intended to or had done so, and without obtaining its own advice as to the safety implications, proceeded to grant the planning permission. By the time that the HSE became aware of this, the construction of three of the accommodation blocks (A, B and C) was well advanced, but work on block D had not yet started.
The HSE advised that the permission should be revoked or modified, but the Council argued that there was no justification for this. The HSE consequently applied for judicial review; firstly, of the Council’s decision to grant the planning permission and, secondly, of its refusal to make an order to revoke or modify the planning permission.
In deciding whether to exercise its power to revoke or modify a planning permission, the Local Planning Authority (“LPA”) should have regard to the development plan and to any other material considerations.
The key legal issue in this case is whether “other material considerations” includes the extent to which compensation will be payable if a permission is revoked or modified. If a revocation or modification order is made, compensation is payable by the LPA to persons “interested in the land”, firstly, for expenditure incurred in carrying out work that is rendered abortive and, secondly, for any other loss or damage directly attributable to the revocation or modification, including any depreciation in the value of the land.
At first instance, Collins J decided that the planning permission should not be revoked or modified in its entirety because revocation and modification is not possible against operations already carried out and three of the blocks had been completed. Also, because the HSE had moved slowly in bringing the matter to the Court, this indicated to it that the danger from proximity to the LPG facility was not “immediate”. The Court instead granted a declaration identifying the failures of the LPA.
The HSE appealed this to the Court of Appeal on the basis that it was not seeking the revocation or modification of the entire permission but only in relation to block D. It contended that the LPA’s decision not to revoke the permission to this extent only was irrational, given that block D was closest to the LPG plant and so represented the greatest risk to human safety.
The Court agreed, deciding that the Council, in determining not to revoke or modify the provision on grounds only of cost, had failed to act rationally. It had failed to consider other important factors and to carry out a proper risk assessment of the impact of leaving the permission intact.
Sullivan and Pill LJJ emphasised that decisions under the Town and Country Planning Act 1990, ss 97 and 102 were not to be taken in a vacuum. Rather, they should be taken within the statutory framework under which compensation may be payable if orders are made.
It will be interesting to see how the Supreme Court addresses the matter, given the importance to the real estate sector of being able to rely upon planning permission.