Town and country planning – Change of use – Risk – Claimants applying for judicial review of decision of defendant local planning authority to grant planning permission for change of use from class C3 residential use with permitted ancillary private helicopter use to commercial heliport – Whether defendant failing to consider risks posed by development to COMAH sites – Application dismissed
The claimants applied for judicial review of the decision of the defendant local planning authority to grant an application by the interested party for planning permission for a development comprising a change of use from class C3 residential use with permitted ancillary private helicopter use to commercial heliport at Victoria House, Cattedown Road, Plymouth.
The claimants operated distilled fuel storage depots, the closest of which was approximately 125m from the helipad. The depots were “establishments” regulated under the Control of Major Accident Hazards Regulations 2015 (COMAH) because of the intrinsic dangers to human health and the environment which the products handled and stored there presented. Highly flammable fuel was regularly unloaded at a dock close to the site and conveyed by over-ground pipes to the claimants’ depots for storage in above-ground tanks.
The claimants challenged that decision on the grounds, amongst other things, that the defendant: (i) failed to consider the material consideration of the risks posed by the development to the COMAH sites; (ii) misunderstood the “fallback” position and skewed the process by which it made the decision; and (iii) acted irrationally by relying on the existence of other regulatory regimes in deciding to grant permission.
The claimants pointed to the potentially catastrophic consequences of a helicopter crashing onto highly flammable fuel and said that the decision-making process and decision abdicated responsibility for the dangers created by the proposed development. In particular, the defendant failed to engage with the scale of risk posed by commercially operated helicopters flying at low heights over large quantities of highly flammable fuel.
Held: The application was dismissed.
(1) The COMAH Regulations, which applied to the claimants’ fuel depots, proceeded on the basis that major accident scenarios, even if unlikely to occur, should be prevented by site operators and mitigated by local authorities as far as possible.
There were two elements to any risk assessment: First, the likelihood of that risk occurring, ie, the likelihood of a helicopter accident on take off/landing and, secondly, the harm from that occurrence.
In the present case, the planning officer and the committee had taken reasonable steps to understand the risks of the proposed development to the COMAH sites and afforded extensive consideration to the risks and their mitigation. Their judgment was that the current ad hoc private helicopter use was less safe than the increased regulation and greater professionalism of commercial flying operations.
It was clear that they recognised that the risks to the COMAH sites from a helicopter crash were a principal issue in their consideration of the planning application. Both the officer’s report and committee meeting showed consideration of the regulatory scheme, the role of the civil aviation authority (CAA), the flight paths, and types and class of helicopter. It was well-established that the reports of planning officers were not to be subject to hypercritical analysis and the planning committee members were not specialist risk assessors. Given that the claimant’s risk assessment showed the chance of catastrophic helicopter failure was one in a billion, the committee was entitled to reach the decision it had.
(2) The argument that the defendant had misunderstood the “fallback” position and skewed the process by which it made the decision, would not be allowed.
The fallback position was a theoretical unlimited private use and enjoyment of the helicopter ancillary to lawful residential use. The claimants were correct in their assertion that there was a permitted development right. The site plan provided by the claimants seemed to show the helipad within the curtilage of a building. However, the claimants’ oral submissions about curtilage did not feature in their statement of facts and grounds or in skeleton argument.
The defendant was justified in complaining that it was difficult to respond to the point at the hearing because it required factual inquiry. The extent of the curtilage of a building was a question of fact and degree and primarily a matter for the defendant subject to the formal principles of public law. It might depend on physical layout; ownership past and present and the use or function of the land and buildings, past and present: Challenge Fencing Ltd v Secretary of State for Housing Communities and Local Government [2019] EWHC 553 (Admin); [2019] PLSCS 50 considered.
The court could not be expected to determine the matter for itself. The courts were entitled to expect judicial proceedings to be conducted with a high level of procedural rigour and be prepared to take robust decisions not to permit grounds to be advanced if they had not been properly pleaded, so as to identify formally, clearly, concisely and precisely the points being raised: Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) considered.
In any event, it was essentially a speculative submission. The highest the claimants could put their case in that respect was a site plan which seemed to show the helipad within the curtilage of a building.
(3) The CAA was the UK’s statutory regulator for aviation. Its representative was provided with details of the proposed flight paths and the interested party’s risk assessment. The CAA had previously corresponded with the interested party about the proposed development. There was no evidence before the court to persuade it that the CAA had or might have misunderstood the clear regulatory distinction between an unlicensed and licensed aerodrome.
The claimants submitted that the CAA had not been presented with any information as to the possible consequences of a helicopter accident occurring on a COMAH site but the court was told in response that the CAA had been given the maps with the COMAH sites marked on them. In any event, this was not the relevant test. The question was whether the regulator in question was capable of regulating the site. The CAA could regulate the site in due course and the defendant had properly satisfied itself that that was the case. Accordingly, the defendant was entitled to rely on the CAA and the relevant regulatory scheme to ensure that the proposed aerodrome remained safe in relation to the COMAH sites.
Philip Coppel QC and Olivia Davies (instructed by Burges Salmon LLP) appeared for the claimant; Wayne Beglan and Sam Fowles (instructed by Plymouth City Council) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Valero Logistics UK Ltd and another v Plymouth City Council