Health & Safety Executive v Wolverhampton City Council & Anor

Where planning permission is sought for development near a hazardous installation, the local planning authority must comply with the consultation and notification procedures designed to obtain the Health and Safety Executive’s case-specific assessment. The authority must give that assessment full regard, although the ultimate decision remains a planning decision and the authority is not automatically bound by the HSE’s advice.

Failure to notify the HSE does not automatically invalidate the permission. Relief remains discretionary, and undue delay may justify refusing to quash permission where substantial prejudice or hardship would result. Reasons for granting permission must address the substantial issues considered and summarise relevant development-plan policies.

The HSE challenged the grant of planning permission for four blocks of student accommodation near an LPG installation. It alleged that the local planning authority had failed to notify it that the authority was minded to grant permission contrary to the HSE’s advice, had failed to notify it of the grant, and had failed adequately to state the reasons and relevant policies supporting the decision.

By the hearing, three blocks had been substantially completed. The HSE therefore sought declarations, injunctive relief and orders concerning the authority’s refusal to revoke or modify the permission. The central issues were whether the consultation and reasons requirements had been breached, whether the decision was irrational, and whether relief should be refused because of delay and the resulting prejudice.

1. Procedural failures. The requirement in paragraph A5 of DETR Circular 04/2000 to give the HSE advance notice where the authority is minded to grant permission against its advice is mandatory. The HSE must have the opportunity to obtain full details, reconsider its advice and decide whether to request a call-in. The local planning authority remains the ultimate planning decision-maker, but it must have full regard to the HSE’s evaluation of the risk.
2. The authority failed to place material matters before the committee. It omitted the HSE’s safety advice and Policy EP10 from the report. It also failed to comply with article 22(1) of the GDPO because the decision notice did not summarise the substantial safety issue, the HSE’s advice or the relevant development-plan policy.
3. The grant was flawed by failure to consider material considerations, but it was not perverse or irrational in the stronger sense that no reasonable decision-maker could have reached it. The HSE’s advice was not determinative of the planning outcome.
4. Relief and delay. The permission remained valid unless set aside. The HSE’s delay was inexcusable. Given the completion of three blocks, the innocent interested party’s substantial commercial prejudice, and the absence of prompt action suggesting an immediate unacceptable risk, the court refused to quash the permission or grant injunctions. Section 31(6) of the Supreme Court Act 1981 justified refusal of substantive relief.
5. The court declined to require reconsideration of the authority’s section 97 power to revoke or modify the permission. The requested injunction against the private interested party, and any order affecting the LPG operator, was outside the proper scope of the claim. The court granted declarations, without the word “unlawful”, and ordered the authority to provide a proper summary of its reasons and relevant policies for insertion in the register.

First-instance judicial review claim. No earlier decision is stated in the judgment.