The Health and Safety Executive (HSE) has won its appeal against a decision to allow a 750-room student village that is being built within metres of a gas installation.
The £40m development, which comprises four tower blocks, three of which have already been built, was brought forward by student accommodation developer Victoria Hall & Fleming Developments UK in the town’s Canalside Quarter.
In his judgment in the High Court in November 2009, Collins J criticised the council for failing to alert the HSE before allowing the scheme to go ahead but refused to quash the decision.
With regard to the HSE’s challenge against the council’s refusal to revoke the planning permission for the fourth tower, under section 97 of the Town and Country Planning Act 1990, because of the “potentially high costs of doing so”, the judge said that it was too late to prevent the building of the fourth tower.
Appealing against the judge’s refusal, Philip Coppel QC, counsel for the HSE, argued that the council’s refusal to revoke the permission in respect of the fourth unbuilt tower was “irrational” and was “animated by improper considerations” in that the council was not entitled to take into account the fact that compensation could be payable to the developer.
Allowing the HSE’s appeal this morning, Sullivan LJ ruled that the council’s decision was unlawful in that it had not properly directed itself as to the ambit of section 97, and so did not consider whether to prevent the construction of the fourth block.
However, by a majority decision Sullivan LJ and Longmore LJ agreed that the fact that compensation is payable is a matter which the council could take into account.
Giving a dissenting judgment on that issue Pill LJ ruled that “the material considerations to be taken into account in making a decision whether to revoke do not include the effect on the local authority’s finances of a decision to revoke.”
Following judgment and in view of the judicial disagreement, the court granted permission to appeal the case to the Supreme Court on the issue of whether the council’s potential liability to pay compensation when making a decision under section 97 is a relevant consideration.
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christian.metcalfe@estatesgazette.com
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