Planning permission – Revocation – Section 97 of Town and Country Planning Act 1990 – Respondents granting planning permission for residential development near liquefied petroleum gas storage facility – Grant of permission contrary to computer-generated advice of appellant statutory consultee on health and safety – Respondents ordered to reconsider request under section 97 – Court ordering respondents to reconsider – Whether compensation payable to developer in event of revocation capable of being a material factor on reconsideration – Appeal dismissed
The respondents granted planning permission to the interested party to construct four blocks of student accommodation on a site within 100m of a liquefied petroleum gas (LPG) facility. Since LPG was listed as a hazardous substance within the meaning of Council Directive 96/82/EC, the respondents were under a statutory duty to consult the appellant regarding the health and safety risks. The respondents carried out the consultation online by running the appellant’s PADHI+ risk-assessment software.
The respondents did not notify the appellant of the grant of permission, either in advance of that grant or subsequently. By the time the appellant learned of the grant four months later, work on three of the blocks was already well advanced. The appellant asked the respondents to revoke or modify the permission under section 97 of the Town and Country Planning Act 1990, at least in respect of the fourth block. The respondent refused to do so.
The appellant sought judicial review of both the grant of planning permission and the decision not to revoke it. At first instance, the grant of permission was declared to be unlawful. However, the judge declined to quash the permission and held that the respondents had acted lawfully in refusing to revoke it: [2009] EWHC 2688 (Admin); [2009] 45 EG 105 (CS). The Court of Appeal reached a different view on revocation, holding that the respondents had acted unlawfully in refusing even to consider exercising their section 97 power; it ordered the respondents to reconsider that matter.
An issue arose as to whether the respondents could take into account the compensation that they might have to pay to the interested party, under section 107, in the event of revocation. The majority of the Court of Appeal held that compensation was capable in law of being a material factor: [2010] EWCA Civ 892; [2010] PLSCS 224. The appellant appealed.
Held: The appeal was dismissed.
As a matter of general principle, a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, was both entitled and required to take into account the cost to the public of so doing, although the weight attributable to cost considerations would vary with context. Section 97 of the 1990 Act did not require a different approach. It obliged the authority to have regard to the development plan and other “material considerations” in deciding whether revocation was “expedient”. That wording was capable of encompassing the cost consequences of revocation. The word “expedient” implied that the action should be appropriate in all the circumstances. Where one of those circumstances was a potential liability for compensation, it was hard to see why that should be excluded. Similarly, “material considerations” meant those considerations that were relevant. Where the exercise of the power would have both planning and financial consequences, there was no obvious reason to treat either as irrelevant: R (on the application of Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] EWHC 71 (Admin); [2010] 2 P&CR 198; [2010] PLSCS 61 considered; Alnwick District Council v Secretary of State for the Environment, Transport and the Regions (1999) 79 P&CR 130; [1999] 4 PLR 43 not followed.
That conclusion was not displaced by the fact that the expression “material considerations”, as it appeared in section 70 in relation to a grant of planning permission, excluded financial considerations unrelated to the use and development of land. Although there was a presumption that words were used with a consistent meaning throughout a statute, sufficient consistency was achieved by treating the expression as it was treated elsewhere in administrative law, namely as meaning considerations material or relevant to the exercise of the particular power, in its statutory context and for the purposes for which it was granted. As between sections 70 and 97, the meaning was the same, but the statutory context was different. Under section 70, the planning authority had a duty to act and a limited choice of either granting or refusing permission. Its decision had to be governed by considerations material to that limited choice. Further, the decision would normally have no direct cost consequences for the authority. By contrast, section 97 imposed no obligation on the authority to do anything at all; the authority had a discretion as to whether, and how, to act. If it did act, it had to bear the financial consequences in the form of compensation. Although a planning permission under section 70 could not be bought or sold, section 97 created a specific statutory power to buy back a permission previously granted. Cost or value for money was naturally relevant to that consideration.
Moreover, even if a narrower view were taken, and a decision to act under section 97 had to be motivated by planning considerations, the same did not apply to inaction. The authority could exercise its choice not to act and, in choosing between that and other means of achieving its planning objective, it was to be guided by what was expedient. No principle of consistency required that process to be confined to planning considerations or to exclude cost. Such an approach did not exclude effective judicial supervision when necessary. A public authority faced with a serious threat to public safety within its sphere of responsibility would find it difficult to defend the rationality of a refusal to act if the only reason were other demands on its budget.
Philip Coppel QC and Carine Patry Hoskins (instructed by the Treasury Solicitor) appeared for the appellant; Robert Griffiths QC and Estelle Dehon (instructed by the legal department of Wolverhampton City Council) appeared for the respondents; the interested party did not appear and was not represented.
Sally Dobson, barrister
