Publications - Commercial Litigation & Dispute Resolution - Scotland
February 2008
Sleeping soundly in your bed?
Planning Law meets hazardous substances
by Craig Connal QC Head of Advocacy
"Planning" has always been an exercise bringing with it what in a past era would have been described as "problems" and are now euphemistically termed "challenges".
One such challenge is the sheer range and complexity of the issues which may require to be understood and applied in the course of an exercise described as "town and country planning" or "land use planning". Everything from development economics to migration of airborne particulates may have to be assessed and considered by the local planning authority. Frequently that will be with the "assistance" of expert material of varying degrees of lucidity to the non-expert. If such "challenges" arise on incidental or peripheral matters, they may not be critical; when on central issues, correct analysis and treatment may be paramount.
Not infrequently – and sometimes overlapping – comes the challenge of other regulatory systems touching upon a topic which is before the planners for consideration. The classic example is the litter arising (allegedly) from the hot food shop. Control of litter is, in part at least, the function of civic government legislation, buttressed by criminal sanctions, yet the litter generator may owe its siting to a decision under Town & Country Planning law. More complex scenarios arise, e.g. where pollution control, a topic characterised by extensive regulation directed at impacts on receptors such as air or water and an elaborate permitting process (such as IPCC controls) crosses the desk of a planner contemplating the siting, for instance, of an incinerator. That incinerator may give rise to smoke, public concern over airborne carcinogens and complaints of nuisance, any or all of which might be regarded as as much within the remit of the pollution regulator as the land use planning decision-maker. How are the two regulatory structures, with their inherently different degrees of expertise on different topics, to be slotted together? Even more complex scenarios arise where there comes on the scene a regulator with an entirely different focus e.g. being charged with concerns such as competition and economics (for example, OFGEM); the "challenge" is compounded for the planner.
Many such issues have been the subject of extensive litigation, debate and comment. In contrast, the regulation of Hazardous Substances – which, raising as it does complex and potentially critical issues over the interface between public safety and planning - has slumbered peacefully, rarely causing enough ripples to attract attention.
A Topical Topic
Why is the normally quiet corner of planning law represented by hazardous substances ripe for discussion now? The general topic of industrial premises employing potentially dangerous material is, sadly, in the public eye at the present with the joint announcement on 1 October 2007 by the Lord Advocate and the Secretary of State for Work & Pensions of a Public Inquiry into an explosion at the Stockline Plastics factory in Maryhill, Glasgow on 11 May 2004. In that explosion (in a generally urban area), nine people died and many more were injured, the explosion itself apparently being caused by a leaking liquified petroleum gas pipe. The Inquiry, the first in mainland Britain under the Inquiries Act 2005, will no doubt produce its own lessons which will be the subject of extensive comment and analysis in due course. In the meantime, while the effects of the Stockline explosion was largely confined to the factory site itself, its very existence is a reminder of the risks associated with industrial processes and the associated issue of planning where they are located.
Interestingly, the Secretary of State, commenting on what the families of the deceased had said were their key concerns, listed risk assessments, the availability of advice and the role of the Health & Safety Executive (HSE).
By fortunate (or unfortunate) coincidence, on 11 September 2007, Lord Clarke, sitting in the Court of Session, issued his judgement in a petition by Eriden Properties for Judicial Review of a grant by Falkirk Council of a Hazardous Substances consent to KemFine UK at Grangemouth (2007 SLT 966), thus providing a relatively rare judicial excursion into this regulatory area.
Statutory & Policy Background
The model adopted for coping with the relations between planning and the specialist subject of hazardous substances has been to create a segment of general planning legislation to deal only with that topic, rather than to try to regulate two separate and freestanding areas of control. The background thus exhibits a structure, familiar in the planning world, of primary legislation, then regulations and, finally, explanatory circular.
In Scotland, the primary legislation is the Planning (Hazardous Substances) (Scotland) Act 1997. In England and Wales the corresponding Act is the Planning (Hazardous Substances ) Act 1990. Section 2(1) of the Scottish Act provides that the presence of a hazardous substance on, over or under land requires the consent of the planning authority (imaginatively described as a hazardous substances consent). Under Section 5(2) "appropriate consultations" are to be conducted before determining an application. Section 5(3) defines "appropriate consultations" as consultations with the HSE and with such persons or bodies as may be prescribed.
Section 7(2) is worth quoting in full:-
"In dealing with such an application the planning authority shall have regard to any material considerations and, in particular, but without prejudice to the generality of the foregoing –
(a) to any current or contemplated use of the land to which the application relates;
(b) to the way in which land in the vicinity is being used or is likely to be used;
(c) to any planning permission that has been granted for development of the land in the vicinity;
(d) to the provisions of the development plan; and
(e) to any advice which the Health and Safety Executive have given following consultations in pursuance of regulations under section 5(2)."
Next layer down is the Town & Country Planning (Hazardous Substances) (Scotland) Regulations 1993 ; Regulation 3 defines the substances which are to be "hazardous substances" and also sets out the controlled quantities with which the regulatory scheme is concerned. It contains familiar procedural provisions. As foreshadowed in Section 5(3) of the Act, the HSE is a prescribed consultee. They are also to be informed of the terms of the local authority's decision, once made. As with other areas of planning control, the applicant has a right of appeal, objectors do not.
Guidance on the topic (which predates the reorganisation of Scottish planning statutes in 1997) is contained in Scottish Office Circular 5/1993 – Planning Control for Hazardous Substances. Again for England and Wales similar guidance can be found in Circular 04/00 “Planning Controls for Hazardous Substances”. Paragraph 5 of annexe A of the Scottish Circular , having recorded the need to consult the HSE, states:-
"They have the expertise to assess the risks (author's emphasis) arising to persons in the vicinity from the presence of a hazardous substance. But the decision as to whether those risks are tolerable in the context of existing and potential uses of neighbouring land is one which should normally be made by an elected authority."
The Circular goes on to further explain the official view of the HSE role and how that is to fit within the structure of a decision-making process controlled by a local planning authority. Para 12 of annexe B states:-
"HSE's role in the land use planning system is to provide planning authorities with advice on the nature and severity of the risks presented by major hazards to people in the surrounding area so that those risks can be given due weight, when balanced against other relevant planning considerations, in making planning decisions."
In para 13:-
"Because HSE's Role in the land use planning system is an advisory one they have no power to direct refusal of planning permission or hsc. Where HSE advise that there are health and safety grounds for refusing, or imposing conditions on, an application, they will on request explain to the planning authority the reasons for their advice."
Para 15 provides for potential call-in by Scottish Ministers . It states:-
"In view of HSE's acknowledged expertise in assessing the off-site risks presented by the use of hazardous substances, any advice from them that planning permission should be refused for development for, at or near to a hazardous installation, or that hazardous substances consent should be refused, should not be overridden without the most careful consideration. Accordingly, the Town and Country Planning (Notification of Applications) (Scotland) Direction 1988 at annex A of SDD circular no. 29/1988, requires a planning authority which is minded to grant planning permission against HSE's advice, to notify the Secretary of State and allow 28 days from that notice for him to decide whether to call-in the application for his own determination . Where a planning authority is minded to grant hazardous substances consent against HSE's advice, they should give HSE advance notice of that intention, and allow 21 days from that notice for HSE to give further consideration to the matter. HSE will consider during that period whether or not to request the Secretary of State to call in the application."
Paragraph 16 deals with the exercise of call in powers and again, in a manner familiar in other areas of planning, indicates that call in will only arise if the application raises planning issues of more than local importance, "including safety issues of exceptional concern". Interestingly, the same paragraph moves immediately from considering the Scottish Ministers' position to considering that of HSE (in a passage, taken to its logical conclusion, which raises intriguing possibilities). The paragraph goes on:-
"HSE will normally consider their role to be discharged when they are satisfied that the planning authority are acting in full understanding of the advice received and the consequences that could follow, and they will consider recommending call in action only in cases of exceptional concern or where important policy issues are at stake." The same order and wording can be found in paragraph A6 to Annex A of the English circular.
So much for the application process and advice thereon. The same Circular explains the other consequence of hazardous substances control, i.e. that where hazardous substances (described as toxic, highly reactive, explosive or flammable) are present, HSE delimit "consultation zones" around sites containing hazardous substances, within which zones planning authorities are required to seek HSE advice on proposals for certain types of development (generally those which will give rise to members of the public being present). As will be seen, it is often the existence and impact of consultation zones which will generate most controversy.
(Advice similar to the foregoing is also to be found in Circular 16/1993 - Hazardous Substances Consents; a Guide for Industry.)
Another perspective – that of HSE – was also highlighted in the course of the discussion in the Eriden case. Reference was made to an in-house – but public – document on HSE's approach to land use planning. That repeats, to all practical intents and purposes, the reference to the HSE position in Circular 5/1993. Thus, HSE's role is described as "advisory". In very similar terms paragraph 3 of the document continues –
"LPAs may be minded to grant permission against HSE's advice. In such cases HSE will not pursue the matter further as long as the LPA understands and has considered the reasons for (the advice)….HSE has the option, if it believes for example that the risks are sufficiently high, to request the decision is "called in"."
The Eriden Case
As so often arises, while the factual background in Eriden provides a convenient and timely consideration of the regulatory structures the precise facts are of less moment. They are dealt with only briefly here. It is, however, tolerably clear from the report of the judgement that the real driver for the battle was not any concern over risks or public safety, per se, even less an examination of the technicalities of any particular aspect of hazardous substances control, but more a reflection of the impact on development prospects of the existence and extent of consultation zones. Eriden wished to develop areas owned by them, probably for housing, and the existence of consultation zones put an impediment in the way of that development.
It is important to bear in mind as background to the Court's judgement, that under Section 15 of the 1997 Act (section 17 of the 1990 Act) a hazardous substances consent is revoked on a change of the person in control of the land (unless an application for continuation of consent has previously been made). As circumstances turned out in Eriden, due to changes in ownership and continuation applications not being timeous, existing consents had been revoked. Technically – and there was some argument over whether that was an appropriate description – there was therefore no hazardous substances consent in place in respect of a very long standing chemical factory usage.
Parties (Eriden Properties, Falkirk Council, KemFine UK and the HSE) engaged in exchanges designed to explore the prospects of reducing the areas covered by consultation zones with consequent potential benefits for Eriden's intended development. Ultimately the HSE set out their position in a letter of 28 September 2006. They said, starkly, that on the basis of their assessment they had –
"concluded that there are substantial risks to the surrounding population arising from the proposed operations. These risks are such that, if this were a new notifiable hazardous installation, HSE would advise against the granting of Hazardous Substances Consent."
In recording points made to them by the Council (including the well established nature of the site and the likelihood of the then current application leading to smaller consultation zones than those which had arisen in the past from previous consents) HSE were content to leave the legal position of previous applications with the Council. However, they said that, taking these factors into account might lead the Council to conclude that:-
"There was a net benefit in land use planning terms in granting the current application."
The petitioners, Eriden, continued to engage in correspondence with the Council. They reminded them that, in legal terms, there was no existing consent at the time the matter was coming before the Council for consideration. The Council responded that they did not believe further enquiries of HSE were necessary. In assessing the application for the relevant Committee, Council officials referred to the importance of the chemical industry to the local area, the fact this was a longstanding site and the application now under consideration was generating smaller consultation zones than had previously applied. They concluded that safety concerns were within what were described as "acceptable levels" and said that that position was "consistent" with that of the HSE. They took the view that the HSE advice did not support a refusal on safety grounds. The Council followed the advice of officials. Consent was granted to KemFine.
Subsequent to the grant of the application there was additional correspondence, including a further letter from HSE of 30 November 2006, suggesting that there might be possible options for reducing consultation zones, which could be discussed if parties wished.
The Eriden Position at Court
Eriden sought reduction of the consent granted to KemFine. They accepted that their interest was primarily the removal of the blighting of their land for development purposes by reason of the existence of consultation zones. They maintained, however, that that was both a legitimate interest and was consistent with the public interest which lay in minimisation of risk. They argued that the approach of the Council overestimated the significance of the fact of a longstanding plant being in existence and underestimated the significance of there being no current consent. They also argued that too little had been done to investigate and review the prospects of limiting or controlling the hazardous substances on the site with a view to thus restricting consultation zones. Given the stark nature of advice from HSE very important matters had confronted the Council with which they had failed to grapple. Eriden argued that the HSE letter, in the context of a new consent, in effect advised refusal. Any suggestion it did not "support" a refusal was a clear misunderstanding. Given the significance of the matter it should have been further examined. No reasonable authority would have issued the consent without reverting for additional advice. Eriden did not argue that consent should necessarily have been refused but rather that it should not have been granted without taking further steps.
Lord Clarke's Decision
In a relatively brief judgement Lord Clarke rejected the petitioner's case. He pointed out that matters had to be tested at the date when the decision to grant consent was made by the Council.
In Lord Clarke's view, the fact that the site had operated as an important part of the petrochemical industry for some years was a highly relevant consideration. It was not, as matter of fact, a new installation. Different considerations might have applied in relation to a new installation but the application applied to a successfully established operation for which there was planning permission, which had played a part in the economic life of the area for some considerable time and in respect of which there had been previous consents. These were "important features" of what was before the Council.
He firmly rejected the argument that the HSE letter in September 2006 amounted to advice to refuse consent. That "flew in the face" of the words of the letter which recognised the "legitimate distinction" between a new application in relation to a new installation and an application in respect of an existing and well-established installation. He did not consider that there was anything in that letter which ought to have suggested to the Council that the HSE thought it necessary for further discussions to take place. Accordingly the Council had carried out the consultations which they were obliged to carry out under the statutory requirements. Furthermore, that consultation was adequate.
Lord Clarke was "not at all impressed" by reliance on the HSE letter which post-dated the decision to grant consent. There was no hint of any further anticipated review of HSE's position in the key letter in September. HSE had not entered the litigation. The Council were well entitled, in Lord Clarke's view, to proceed on the basis that the HSE position had been set out in that September letter.
Dismissing fairly shortly a raft of arguments for the petitioners, Lord Clarke concluded that he could see no failure to take into account relevant considerations nor the taking into account of irrelevant considerations. The Council were particularly experienced in dealing with applications of that type.
"…..their role is a difficult one of balancing economic advantage against the risks to the public, which, inevitably arise having regard to the kind of industry involved. It is clear, in particular, in my judgement, that in the incident case, the (Council) in carrying out that balancing exercise in arriving at the decision they did, did so on a reasoned and reasonable basis, giving particular regard to the history of the (KemFine) site"
There was nothing which required further discussion or consultation and it could not be said that no reasonable authority would have granted consent without further discussion. The petition was accordingly refused.
Discussion
As previously pointed out, any decision of this kind inevitably turns on its own facts and circumstances. On two levels, the decision creates no surprises. Firstly, the legal argument was, of course, conducted against the familiar background of general law on judicial review. That tranche of authority resolutely turns its face against anything which might be regarded as interfering with, or assuming responsibility for, the underlying merits of a regulatory decision. Absent a clearly identifiable error of law, failure to take account of a material circumstance or the like, the challenger is inevitably thrown back on the "Wednesbury unreasonable" hurdle. Given its traditional formulation – "no reasonable authority properly directing itself would have proceeded in that way" - it remains a formidable obstacle to overcome. To that extent, a decision by a court that it is not entitled to interfere is readily comprehensible.
Stepping back from the legalities, the pragmatism underlining an approach which allows the continuation of a long established employment generator is obvious. Put another way, a judicial decision which might have had the result of putting at risk a substantial number of jobs in a major commercial operation could well have been viewed as controversial! Of course, it is sometimes overlooked, particularly by non-lawyers, that success in a judicial review of this kind will generally lead only to the setting aside of the local authority decision and its return to them for redetermination. In other words, it is not necessarily to be assumed that the ultimate result in a case like this would be refusal (indeed, in Eriden, the petitioners disavowed any argument that the result of further investigations or consultations would necessarily have been refusal of the application). As the site was, apparently, operating without hazardous substances consent already, a decision to grant the petition (and thus to set aside the consent granted) might not be regarded as having the potentially dramatic effects which could arise in other circumstances. So perhaps the practical impact is capable of misunderstanding or overstatement.
From a purely legal perspective, if one was to search for a ground of criticism, it might be found in passages suggesting that Lord Clarke had himself formed a view about the significance (or "importance" to use his phrase) of the pre existing and long standing factory use. One might argue that in forming that value judgement (and the judge does not record forming a similar view on the "importance" or otherwise of (i) the absence of hazardous substances consent and (ii) the advice of the appropriate specialist body that for a new installation the level of risk was such that the recommendation would be refusal) - he has strayed beyond the traditional judicial review remit. In fairness, the concluding sections of the judgement do deal with the case in the phraseology of a traditional judicial review format, giving primacy to the role of the statutory decision maker. It may therefore be wrong to carry out too close a semantic analysis of particular sections.
Viewed more generally, the absence of hazardous substances consent prior to the application raises interesting questions. In other contexts, commercial parties are not unfamiliar with a sometimes unsympathetic approach by courts to failings on their part. That approach is sometimes couched in terms such as "this party is a substantial company employing expensive lawyers and other experts. It is not clear why this court should be assiduous to rescue them from the consequences of their inadequacies". If, for whatever reason, including errors on the part of various occupiers, no hazardous substance consents are in place, does that not create a new or at least different situation for the Council, as regulators? Would it not have been at least open to them to feel obliged to take a different approach to the approval than they would have adopted e.g. for amendment of an existing consent? A developer who allows a general planning consent to lapse will not necessarily be able to safely assume that he can obtain a fresh consent in the same or similar terms without, at the very least, being at risk of the matter being revisited in light of the then prevailing circumstances.
The approach to the control of risk also raises much broader issues at a time when Health and Safety has rushed to the top of the corporate and public agenda. Hardly a day passes without headlines relating to one incident or another. The standing of major commercial companies is influenced by safety records as well as profit generation. Pausing on the Eriden circumstances for a moment, the body – the HSE - said to have the appropriate expertise, had decided that because of risks to the public, they would have recommended against a new installation. By definition, the Council had no material with which to challenge or even debate the validity of that view. There is no indication in the judgement that there was any material advanced on the part of the applicant, KemFine, which sought to challenge it. So the matter before the Council was not a point of detail nor, in reality, an argument about precise limits of consultation zones or individual hazardous substances or quantities of such substances – what was at issue was the very existence of the establishment at all. Leaving aside the language of judicial review for the moment, could it not be said that – looked at in isolation - unchallenged advice from the acknowledged experts that the risks were at that kind of level was such an "important" factor that at least it could – if not would - have led any reasonable Council to explore every possible option before simply granting the consent? That is to illustrate the problem – economic or development or employment factors might lead in a different direction.
The wider issues are thus conveniently illustrated by the Eriden case. The statutory framework is structured on the assumption that the HSE are the body – and the only officially recognised body - with the expertise to assess risks of this kind. No doubt they are not in, in practice, the only parties to have such expertise. Applicants and others can employ consultants to analyse and comment on any HSE view. However, look back to the advice that HSE gave in the Eriden case. In their letter of 28 September 2006 they spoke of "substantial" risks to the surrounding population. These were, apparently, of a magnitude that consent for a new establishment would have been refused. Assume for present purposes that that view was correct. There being an existing –now consented – installation, these risks presumably continue to exist. What is the local Council supposed to do about that? Their jurisdiction lies primarily in deciding applications for consent yet here they were given the task of, in effect, accepting that these substantial risks to the population should remain. It is not entirely clear how a council is to evaluate – particularly in current times with increasing emphasis on health and safety – something described as "a substantial risk to the surrounding population" against other factors such as economics or employment or not disturbing the status quo of an existing plant. How many apples balance out how many oranges? Experienced authority or not, what skills and analysis are available to be brought to bear on the expert view? The HSE, of course, express no view on land use planning issues nor is that directly within their expertise. In Eriden the Council seemed to conclude that safety concerns were "acceptable". It is not possible to ascertain from the material in the report on what basis that assessment of the "acceptability" of the substantial risks to the surrounding population was made. It may be nothing more than a reflection of the fact that the HSE letter did not say, directly, "please refuse the application". Without being in any way critical of any of the participants in the Eriden case it does shine an uncomfortably bright light on a potentially difficult area. Planners will of course argue that they are accustomed to carrying out a balancing act between or among different considerations; the question might well be whether in modern times safety is to be treated in the same way as other factors, particularly areas of safety which, if things go wrong, could lead to catastrophic consequences.
No doubt in many hazardous substance consent application, little will be at issue other than, perhaps, detailed conditions. The HSE will recommend conditions, applicants will accept them as stated and councils will impose them, without amendment. But there is a range of possibilities between that simple scenario and the explanation of "significant risks" of a more dramatic nature. That makes it even more intriguing that the structure of the regulatory system also contains advice that HSE will not in the majority of cases intervene provided that they are satisfied that the Council in question has understood the risks and potential consequences. Leave aside the question of precisely how one analyses that level of understanding of specialist advice, (it being notoriously difficult to be sure an individual really understands a complex point never mind a group such as a committee). An outside observer might legitimately be puzzled as to what the framing of paragraph 16 of Circular 5/93 was designed to achieve. As has been stated, one point is clear. The acknowledged experts, having advised the Council as to the position, will not get involved provided they are content that the Council understand what they have been told. What seems to be implicit is that that position will be maintained even if it becomes clear that the advice points in one direction and the decision takers are heading steadfastly in the opposite direction. In other words, that does not appear to be identified as circumstances giving rise to likely further intervention by HSE. In addition, there is no direct indication that another consequence of approach has been considered. HSE hold the key to reconsideration of any decision on the merits by a higher authority (in Scotland, the Scottish Ministers). Reconsideration at that level is the only likely circumstance in which the merits will be revisited, given the absence of appeal rights on the part of objectors and the constraints on a court in a judicial review process becoming involved in the merits. Accordingly, there being no other way that the door will be opened, the approach adopted by the holders of the key to the lock is especially critical.
It is not of course suggested that the line explored above reflects a developed policy objective of the HSE; what they can and cannot do is constrained by the legislation and Government advice. However with a view to as many people as possible sleeping soundly in their beds a fresh discussion on the topic may be long overdue. One question which might be asked is whether the question of consultation zones potentially impeding development is relevant at all to the question of hazardous substances consents. Doubtless a full analysis of risks might lead to a conclusion that they have been overstated or do not arise in any particular physical location but a decision driven – or even significantly influenced - by economics or development values which seeks – where there is an option – to place the public closer to risks raises very difficult issues, particularly when cases such as Eriden (and indeed Stockline) remind us that significant areas of our towns and cities still have major industrial users within them.
Conclusion
Often the examination of health and safety and its application alongside or within other regulatory structures is driven by a hindsight examination of some incident which has had dramatic consequences, whether that is the Piper Alpha Disaster or something like Stockline. The good sense in learning lessons from such events is obvious. However, perhaps from time to time we are also reminded that a review before a problem arises might be even better! Hazardous substances consent has crept to the surface in the Eriden case, thus allowing at least a brief examination of some of the potential issues.
«Back to Commercial Litigation & Dispute Resolution - Scotland Publications
McGrigors' lawyers produce a variety of publications to help keep clients up to speed with legal developments in their industries.
You can select the areas most relevant to you on the left and you can register for email updates to make sure you don't miss out.