The Health & Safety Executive v Wolverhampton City Council & Anor

A local planning authority considering revocation or modification of planning permission must correctly identify the scope of its statutory power and evaluate the feasible option. Completion of some parts of a development does not justify ignoring an order affecting uncompleted works. Under the Town and Country Planning Act 1990, the duty to consider the development plan and other material planning considerations does not prevent consideration of compensation liability under sections 107 and 115 when deciding whether an order is expedient. The authority must still consider planning consequences and cannot act solely to avoid compensation. Failure to consider a materially distinct option, or reliance on the cost of an impossible order, is unlawful and may be irrational.

The Health and Safety Executive sought judicial review of Wolverhampton City Council’s grant of planning permission for student accommodation near an LPG facility and of its later refusal to revoke or modify that permission under section 97 of the Town and Country Planning Act 1990.

Collins J granted declaratory relief concerning procedural failures in the grant of permission but dismissed the challenge to the later decision. The HSE appealed only against that dismissal. By the time of the appeal, three blocks were complete and occupied, while block D, the closest to the LPG facility, had not been constructed. The central issues were whether the Council had unlawfully failed to consider a partial revocation or modification, and whether potential compensation was a permissible material consideration.

1. Appeal allowed. All three Lord Justices agreed that Wolverhampton’s decision of 29 May 2009 was unlawful. The majority comprised Sullivan and Longmore LJJ. Pill LJ agreed on the unlawfulness of the decision but dissented on the compensation issue.
2. The Council had failed to direct itself correctly as to the ambit of section 97. The statutory restriction protecting completed operations meant that an order could not operate on blocks A-C, but it remained possible to prevent construction of block D. The fact that the original permission was not quashed did not make partial modification inappropriate, since the permission related to four distinct blocks.
3. The Council had considered the costs of revoking the entire permission, although that was no longer legally possible. It had also failed to consider the risk reduction achieved by preventing construction of the block closest to the LPG facility. Its failure even to consider that option was irrational under conventional Wednesbury principles. The HSE’s attempts to resolve the matter administratively did not establish that the risk was non-immediate.
4. By a majority, Sullivan and Longmore LJJ held that the Town and Country Planning Act 1990 must be read as a whole. A local planning authority may consider its statutory liability to pay compensation under sections 107 and 115 when deciding whether revocation or discontinuance is expedient. The concept of material considerations remains a planning concept, but the compensation provisions form part of the statutory framework. Compensation must not be the sole consideration or a substitute for a proper planning purpose.
5. Pill LJ would have followed (2000) 79 P&CR 130, holding that compensation liability was not a material planning consideration. The second decision was quashed and Wolverhampton was ordered to reconsider whether to revoke or modify the permission insofar as it related to block D.

• Court of Appeal (Civil Division) — The appeal was allowed. The decision of 29 May 2009 was quashed, and the matter was remitted for reconsideration under section 97 of the Town and Country Planning Act 1990. [2010] EWCA Civ 892
• High Court — Collins J granted declaratory relief concerning procedural failures in granting planning permission but dismissed the HSE’s challenge to the refusal to revoke or modify the permission.