In July 2007, the interested party applied to the respondent council for planning permission to construct four blocks of flats to house university students. The application site was located within 100m of a liquefied petroleum gas (LPG) facility; LPG was listed as a hazardous substance within the meaning of Council Directive 96/82/EU. Since the development would provide residential accommodation, the respondents were obliged to consult the appellant, as a statutory consultee, regarding health and safety risk, in particular those associated with an explosion at the LPG facility. They were advised by a letter produced by the appellant’s risk-assessment software (PADHI+) not to grant planning permission on grounds of safety.
The respondents nevertheless granted the permission in August 2008. They did not notify the appellant in advance of this, nor did they provide it with full details of the scheme, as was required by para A5 of DETR Circular 04/2000 (Planning Controls for Hazardous Substances), so as to enable the appellant to decide whether to request the secretary of state to call in the application. They also failed to notify the appellant of the grant of permission after the fact, as required by para A9 of the circular.
On learning of the grant in December 2008, the appellant unsuccessfully sought to persuade the respondents to revoke or modify the permission under section 97 of the Town and Country Planning Act 1990. In July 2009, it brought proceedings challenging the grant of permission. By that time, three blocks had been constructed. The appellant 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. The judge granted the relief sought, but dismissed the challenge in respect of the respondents’ decision not to revoke or modify the permission: see [2009] EWHC 2688 (Admin); [2009] 45 EG 105 (CS).
The appellant appealed. It argued that: (i) it had sought the revocation or modification of the permission only in respect of the fourth block, so that the judge had rejected its challenge on the false premise that it had sought the revocation of the entirety of the permission; and (ii) in considering whether to exercise these powers under section 97 of the 1990 Act, the respondents were not entitled to take into account, as a material consideration, the compensation that they would have to pay to the interested party under section 107 of the Act.
Held: The appeal was allowed.
(1) The judge had given compelling reasons to explain why the respondents would decide that they could not lawfully exercise their powers under section 97 so as to revoke the entire permission. However, this did not justify the respondents’ failure to consider the exercise of their section 97 powers to prevent the construction of the fourth block. Once the letter before action had been received, the respondents could have been in no doubt that the appellants was seeking an order revoking or modifying the permission only in respect of the fourth block. However they had failed to consider whether to make an order in respect of that block alone, and the judge had therefore been persuaded to refuse relief on the false premise that revocation had been sought of the entire permission. Although it had not been irrational for the respondents to refuse to revoke the entire permission because such a course had been legally impossible, they had acted irrationally in failing even to consider whether to revoke or modify the permission in respect of the fourth block. Accordingly, the judge’s decision should be quashed and the respondents ordered to reconsider whether they should exercise their section 97 powers in respect of the fourth block: R v North West Leicestershire District Council, ex parte Moses (No 2) [2000] Env LR 443 distinguished.
(2) (Pill LJ dissenting) The fact that compensation would be payable to those that would be adversely affected by the order under sections 97 or 102 had to be a relevant consideration when a decision was taken on the expediency of the order. Parliament’s intentions in enacting the 1990 Act were to be ascertained by considering the Act as a whole. Decisions under sections 97 and 102 were not taken in a vacuum but within a statutory framework that required compensation to be paid if orders were made under them. In that statutory context the obligation to have regard to the development plan and other material planning considerations in sections 97 and 102 should not be construed as though it prohibited having regard to the provisions relating to compensation in section 107 and 115 of the Act: R (on the application of Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] EWHC 71 (Admin); [2010] PLSCS 61 approved; Alnwick District Council v Secretary of State for the Environment, Transport and the Regions [1999] 4 PLR 43 disapproved.
(3) (Per Pill LJ) Richards J, in Alnwick, had been correct to conclude that the planning authority had not been entitled to take into account the fact that compensation would be payable to the landowner. The material considerations to be taken into account in making a decision under section 97 did not include the effect on the local authority’s finances of a decision to revoke. Planning decisions had to be taken on planning grounds: Alnwick considered.
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) appeared for the respondents; James Maurici and Jacqueline Lean (instructed by Reed Smith LLP) appeared for the interested party.
Eileen O’Grady, barrister