The Health and Safety Executive v Wolverhampton City Council

The central question was whether a local planning authority, when deciding under section 97 of the Town and Country Planning Act 1990 whether it is expedient to revoke or modify a planning permission, may have regard to the compensation it would or might have to pay under section 107. The Supreme Court held that it is open to the authority to take likely compensation liability into account as part of the assessment of what is "expedient". The court reasoned that the word "expedient" and the statutory context of section 97 permit consideration of financial consequences, although planning considerations (including the development plan) remain the starting point. The court emphasised that such a discretion is subject to ordinary public law supervision and that serious threats to safety could make financial considerations insufficient to justify inaction.

Background and facts:

• Planning permission was granted by Wolverhampton City Council for four blocks of student accommodation near a liquefied petroleum gas (LPG) storage site. The Health and Safety Executive (HSE) had advised against granting permission on safety grounds, using its PADHI assessment system. The council failed to engage adequately with HSE and did not notify it promptly of the grant of permission. Works on three blocks were substantially advanced when HSE discovered the permission.
• The HSE sought revocation or modification of permission (in particular to prevent construction of the block within the inner risk zone) and issued proceedings for judicial review of both the grant and the decision not to revoke.

Procedural history:

• At first instance Collins J granted permission to apply for judicial review, made a declaration of procedural failings by the council and required fuller reasons; he declined to quash the permission or compel revocation. The Court of Appeal concluded the council should reconsider the decision whether to revoke in respect of the closest block and was divided on whether compensation liability was a material consideration. The HSE appealed to the Supreme Court.

Nature of the application and issues:

• The appellate issue agreed for the court was: when considering under section 97 whether revocation or modification is expedient, is it always open to a local planning authority to have regard to compensation payable under section 107?

Court's reasoning and conclusion:

• The court adopted a purposive and contextual approach to section 97. It observed the ordinary administrative law principle that public authorities, as custodians of public funds, should normally take financial consequences into account where relevant.
• It rejected a rule that the phrase "material considerations" must be given the identical, restricted meaning in section 97 as in the context of initial planning decisions under section 70. Instead, the court held that "material" means relevant to the exercise of the particular statutory discretion in its context. Under section 97 the authority has a discretionary choice whether to act and, if it acts, will normally bear the financial consequences in compensation; this context makes such financial consequences relevant to the question whether action is "expedient".
• The court nevertheless emphasised that planning considerations and the development plan remain the starting point and that a decision motivated by planning objectives is required. Consideration of compensation does not licence decisions based purely on financial self-interest; judicial review remains available to correct irrational or unlawful decisions, and the Secretary of State may make an order under section 100.

Disposition:

• The Supreme Court dismissed the HSE's appeal, affirming that it is open to a local planning authority to take likely compensation into account when deciding under section 97 whether it is expedient to revoke or modify a permission.

Appeal dismissed. The Supreme Court held that when deciding under section 97 of the Town and Country Planning Act 1990 whether it is expedient to revoke or modify a planning permission a local planning authority may have regard to the compensation it would or might have to pay under section 107. The court reasoned that the statutory word "expedient" and the context of the section permit consideration of financial consequences relevant to the statutory choice, while confirming that planning considerations and the development plan remain the primary guide and that decisions remain subject to public law review.

First instance: Collins J (High Court) (14 October 2009) — granted permission for judicial review; declined to quash the permission or compel revocation but declared procedural failings and ordered further reasons. Court of Appeal (30 July 2010) [2010] EWCA Civ 892 — unanimous that the council should reconsider revocation in respect of the closest block; majority held compensation could be a material factor, Pill LJ dissenting. Supreme Court ([2012] UKSC 34) — appeal dismissed.