Development – Hazardous substances – Claimant applying for permission for residential development close to site with hazardous substances consent – Planning inspector upholding refusal of permission owing to proposed development’s proximity to adjacent site – Whether inspector entitled to conclude proposed development unacceptably increasing number of people exposed to safety risk – Application dismissed
The claimant was the owner of land that was formerly the effluent treatment works for a paper mill (the appeal site) and was adjacent to a site with hazardous substances. The second defendant local planning authority were also the hazardous waste authority under the Planning (Hazardous Substances) Act 1990 (PHSA 1990) and the Planning (Control of Major-Accident Hazards) Regulations 1999 (SI 1999/981).
The claimant applied for planning permission to erect 96 dwellings on the appeal site. The application was refused following a risk assessment, which had been carried out in accordance with the guidance in the Health & Safety Executive (HSE) circular 4/2000 on the operation of consent procedures for hazardous substances.
The claimant appealed to the first defendant under section 78 of the Town and Country Planning Act 1990 (the 1990 Act) contending, inter alia, that the second defendants had adopted the wrong approach in basing their risk assessment on exemplar substances and maximum permitted quantities. It argued that the correct approach was to assess the nature of the actual residual risk by reference to specific quantities of chemicals.
Following a public inquiry and a site inspection, the first defendant’s inspector dismissed the appeal. She noted that a significant proportion of the site lay within the inner land use planning zone for the storage of hazardous substances and concluded that the proposed development would result in an unacceptable increase in the number of people exposed to the risks from chemicals stored on the adjacent site.
The claimant applied to quash that decision, pursuant to section 288 of the 1990 Act, contending, inter alia, that the inspector had failed to follow the guidance in para 41 of circular 4/2000 by failing to ask whether the actual residual risk to potential residents would be tolerable or acceptable.
Held: The application was dismissed.
The planning inspector was not required to follow the guidance in para 41 of circular 4/2000. That paragraph was concerned with the determination of applications, under section 4 of the PHSA 1990, to use hazardous substances and not with planning applications for proposed new developments in the vicinity of existing hazardous installations such as the present where consent had been granted.
Moreover, it was for the planning inspector to decide how much weight to attach to the parties’ proposed alternative approaches to risk assessment. It was not for the court to usurp the first defendant’s policy-making role by formulating a test to be read across the planning control system.
The safety controls imposed by the HSE focused on major accident prevention, where the nature and quantity of dangerous substances could be modified. They did not purport to cover all aspects of the risks and hazards posed to the public by particular existing installations. Thus, as a matter of law, the inspector had been entitled to conclude that little weight should be accorded to those controls in the light of the claimant’s case and the relevant statutory provisions.
Furthermore, although the HSE expert had acknowledged that the risks to existing residents were tolerable, that was not the relevant test in the instant case. On her analysis of the evidence, the inspector’s conclusion that the development would unacceptably increase the number of people exposed to the residual risk was neither irrational nor inadequately reasoned.
Anthony Dinkin QC (instructed by Penningtons LLP) appeared for the claimant; Philip Coppel (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
