In Valero Logistics UK Ltd and another v Plymouth City Council [2021] EWHC 1792 (Admin), the High Court confirmed that the consideration of health and safety risks associated with a development is a planning judgment for the local planning authority to which the courts should not revisit.
The council granted planning permission for the change of use from Class C3 residential use with permitted ancillary private helicopter use to a commercial heliport at Victoria House at Cattedown in Plymouth. The claimants operate nearby distilled fuel storage depots which are regulated under the Control of Major Accident Hazard Regulations. Highly flammable fuel is regularly unloaded near the site and conveyed by overground pipes to the claimants’ depots.
The council’s planning officer sought the views of the Civil Aviation Authority; the planning officer then recommended approval of the application subject to a number of planning conditions, which included a requirement for the applicant to establish a direct line of communication with the claimants, and conditions limiting the flight paths and hours of operation.
The claimant challenged the planning permission on five interrelated grounds. The key grounds were that the council failed to consider the risks posed by the proximity of the development to the claimants’ sites owing to reliance on the aviation regulation scheme, and that it was irrational for the council to rely on other regulatory regimes when granting permission, in particular as the CAA would have insufficient power to regulate the risks from the unlicensed heliport.
The court held that the planning officer and committee afforded extensive consideration to the principal issue of the risks to the claimants’ sites and the necessary mitigation, and took reasonable steps to understand the risks. The planning judgment reached was that the current ad hoc private helicopter use at the site was less safe than the increased regulation and greater professionalism of commercial flying operations from the site. The planning committee are not specialist risk assessors, and given that the applicant’s risk assessment showed the chance of catastrophic helicopter failure was one in a billion, the committee was entitled to reach the decision it did.
Further, the officers’ report and planning committee conversation should not be subject to hypercritical analysis. The court also held that the council had properly satisfied itself that the CAA was able to regulate the site owing to its location within a congested area, and therefore the council was entitled to rely on the regulatory scheme for the purposes of mitigating risks to the claimants’ sites.
The case confirms the officers’ reports and planning committee discussions should not be subject to a hypercritical approach, and that local planning authorities are able to rely on other regulatory schemes to control development.
Claire Petricca-Riding is head of planning and environment at Irwin Mitchell
