Planning application – Health and safety risks – Consultation requirements – Paras A5 and A9 of DETR Circular 04/2000 – Claimant as statutory consultee advising against grant of planning permission for development on ground of safety risk – Defendant council granting planning permission – Whether failing to comply with notification requirements under circular – Nature of appropriate relief – Claim allowed in part
In July 2007, the defendant council received an application from the interested party for planning permission to construct four blocks of flats to house university students. The application site was located within 100m of a liquid petroleum gas (LPG) facility; LPG was listed as a hazardous substance under various regulations. The defendants consulted the claimant as a statutory consultee regarding the health and safety risks of the development, in particular the risks associated with an explosion at the LPG facility. They did this by entering the details of the development into the claimant’s risk assessment software (PADHI+). The claimant advised the defendants against granting planning permission on grounds of safety.
Despite that advice, the defendants granted planning permission in August 2008. They did not give the claimant advance notice of this nor did they provide it with full details of the scheme, as required by para A5 of DETR Circular 04/2000, so as to enable the claimant to decide whether to request the secretary of state to call in the application. They also failed to notify the claimant of the grant of permission after the fact, as required by para A9.
On learning of the grant in December 2008, the claimant unsuccessfully sought to persuade the defendants to revoke or modify the permission under section 97 of the Town and Country Planning Act 1990. In July 2009, it brought proceedings, challenging: (i) the lawfulness of the permission, on grounds related to a failure to comply with para A5 of the circular, inadequacy of reasons and irrationality; and (ii) the defendants’ refusal to revoke or modify the permission. By that time, three blocks had been constructed. The claimant accepted that it would be inappropriate to quash the permission, but sought declarations as to its unlawfulness and an injunction to prevent the construction of the fourth block and the occupation of those that had been built.
Held: The claim was allowed in part.
(1) Para A5 of the circular imposed a mandatory requirement to give advance notice to the claimant of an intention to grant permission. Although the claimant’s role was advisory only and the ultimate decision was a planning one, that decision had to be taken having full regard to the claimant’s evaluation of the acceptability of the risk; and the claimant had to be able to investigate an individual case in order to form a proper view. The para A5 requirement enabled the claimant, as the body with the relevant expertise, to seek full information regarding the particular development and to consider whether the PADHI+ advice, which was based solely on the information supplied by the defendants and the general view resulting from it, should still be maintained following a full investigation of all material factors. If it decided to maintain its advice against the grant of permission, and the defendants persisted in their view that permission should be granted, that decision would be subject to the secretary of state’s power to call in and to hold an inquiry at which all material evidence could be considered. Although the defendants could not be said to have acted irrationally, they had failed to follow the requirements imposed by the circular.
(2) A failure to comply with para A5 did not invalidate the permission, which would remain valid unless set aside by a competent body such as the court. The court had a discretion whether to grant relief. In the instant case, it was not appropriate to quash the permission owing to undue delay by the claimant in bringing the proceedings. The claimant’s failure to take positive action sooner indicated that it did not believe the safety risk was unacceptable, at least in the short term. Consequently, the permission remained valid and the interested party was entitled to put it into effect. However, declarations would be granted as to the defendants’ failure to notify the claimant of the grant of permission and to give an adequate summary of their reasons and the relevant policies.
(3) Revocation of the permission would be inappropriate in circumstances where three blocks had been built, the planning permission remained valid and the interested party would be adversely affected and possibly put out of business, even if compensation were payable. Nor would it be appropriate to grant an injunction against the interested party. There was no authority to suggest that the court could make a final injunction against an interested party, particularly where that party was not a public body. The Administrative Court was concerned with claims against public bodies, not private persons or corporations. Consequently, there was no power to grant the injunction sought, even if there had been merit in the claim.
Philip Coppel QC and Carine Patry-Hoskins (instructed by the Treasury Solicitor) appeared for the claimant; Robert Griffiths QC and Estelle Dehon (instructed by the legal department of Wolverhampton City Council) appeared for the defendants; James Maurici and Jacqueline Lean (instructed by Reed Smith LLP) appeared for the interested party.
Sally Dobson, barrister
