Unicoin (Dartford) Ltd, R (on the application of) v Secretary of State for Communities and Local Government & Anor [2008] EWHC 3214 (Admin)

Case No CO/2579/2008[2008] EWHC 3214 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 24th November 2008
Strand
London WC2A 2LL
B e f o r e:
MR DAVID HOLGATE QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF UNICOIN (DARTFORD) LIMITEDClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantDARTFORD BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Anthony Dinkin QC (instructed by Penningtons Solicitors) appeared for Claimant (Robin Green appeared on 24th November 2008 in Mr Dinkin's absence)Philip Coppel (instructed by the Treasury Solicitor) appeared for First DefendantCaroline Bolton (instructed by Dartford Borough Council) appeared for Second Defendant (for judgment only)
J U D G M E N T
[1]THE DEPUTY HIGH COURT JUDGE: This is an application under Section 288 of the Town and Country Planning Act 1990 to quash the decision of an Inspector given on behalf of the first respondent, the Secretary of State for Communities and Local Government. The decision was given by a letter dated 4th February 2008, following a planning inquiry which was held on 13th November 2007. By an order of Collins J on 22nd August 2008, "Unicoin (Dartford) Limited" was substituted for "Unicoin Homes Group Plc".[2]I summarise the background to this matter as described by the claimant. The claimant is the owner of a site which was formally the effluent treatment works forming part of the Arjo Wiggins Paper Mill, Priory Road, Dartford, Kent. The second defendant is the local planning authority for the purposes of the proposed development. It is also the hazardous substances authority for the purposes of the Planning (Hazardous Substances) Act 1990 and the Planning Control of Major Accident Hazards (COMAH) Regulations 1999 (SI 1999/981) ("the COMAH Regulations").[3]On 23rd November 2007 the claimant submitted a planning application to Dartford Borough Council, seeking permission to redevelop the appeal site to provide 96 new dwellings. The application was refused by the Borough Council by a decision notice dated 26th June 2007, on the following grounds:
"A significant proportion of the site lies within the inner land use planning zone determined by the entitlement of Glaxo Smith Kline to store hazardous substances on its northern site (HSE ref: H3492). Given the location and density of the proposed residential development it is considered inadvisable to locate this development here where the level of residual risk for this development is considered unacceptable. The proposal therefore fails to sufficiently taken into account the need to safeguard public safety."
[4]There then followed an appeal to the Secretary of State against that refusal under Section 78 of the Town and Country Planning Act 1990. The sole reason for refusal relied upon by the council became the main issue at the appeal. Therefore, it was critical to the outcome of this proposal.[5]It was common ground at the inquiry that, in refusing permission on that single ground, the local planning authority had relied entirely upon a consultation response from the Health and Safety Executive. The HSE is the relevant competent authority for the purposes of enforcing the Health and Safety at Work Act 1974 and the COMAH Regulations in this case. The HSE's consultation response was made pursuant to advice given in Circular 04/00 and relied upon its own published guidance in a document known as "PADHI - HSE's Land Use Planning Methodology".[6]At the inquiry, specialist expert evidence on safety issues was given: firstly, by Mr Stephen Wright of the HSE for the Borough Council and, secondly, by Mr Steve Kershaw of Haztech Consultants for the claimant.[7]The Inspector dismissed the appeal by her decision letter of 4th February 2008.[8]The challenge in this court can only be made on the grounds set out in Section 288. The principles upon which the court may intervene are well established by authorities such as Seddon Properties v Secretary of State for the Environment [1978] 42 P&CR 26 and, in relation to the duty to give reasons, by two decisions of the House of Lords: Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953.[9]The challenge in this case has to be considered in the context of the issues and evidence as presented to the Inspector at the inquiry. That in turn depends upon the evidence placed before this court as to what took place at the inquiry. Two consequences follow, which I mention at the outset.[10]First of all, having listened to helpful and detailed argument, the legal merits of the challenge in this case can be determined without the need for any wider-ranging discussion of the interface between planning legislation and health and safety legislation, including the COMAH Regulations. Similarly, there is no need for the court to venture upon a discussion of the merits of risk assessment principles used by the HSE for assessing new developments near to existing hazardous installations, as opposed to the assessment of applications for the approval of new hazardous installations. Any such discussion must be a matter for other proceedings.[11]Secondly, in his oral submissions, Mr Anthony Dinkin QC stated that it had been common ground at the inquiry that the sole issue for the Inspector to determine was whether the level of residual risk was tolerable, applying paragraph 41 of Circular 04/00. He went on to submit that because the Inspector had failed to apply that test without giving reasons, the application had to succeed on that ground alone. Mr Philip Coppel was not prepared to accept that that had been common ground.[12]There is no witness statement asserting that it was. Therefore, there has been no opportunity for instructions to be taken from either the Inspector or from Dartford Borough Council. Dartford Borough Council did not have any forewarning of this point being taken and they are not represented in court. I indicated that I did not think that, as a matter of fairness, the point could be raised at this stage and, quite properly, Mr Dinkin did not seek to advance it further.[13]There is one other preliminary matter to which I should refer. At the hearing Mr Dinkin announced that the claimant would not pursue the last ground of challenge set out in paragraph 19 of the amended particulars of claim, which alleges that the Inspector had made material errors of fact. I agree that he was correct in not pursuing those points, not least because of the two witness statements from the Inspector, Susan Holland. The main issue and evidence before the Inspector[14]The Inspector identified the main issue in the appeal, as she saw it, in the appeal in paragraph 2 of her decision letter:
"The main issue in this appeal is whether the proposed development would unacceptably increase the number of people exposed to the risks associated with proximity to the adjacent site on which hazardous chemicals are stored."
[15]She summarised the advice of the HSE, as given at the planning inquiry, in paragraphs 3 and 4 of her decision letter:
"3. Much of the appeal site is included within the Inner Consultation Zone (defined by HSE according to its PADHI system) around the Glaxo Smith Kline (GSK) hazardous installation which occupies land to the north-east of the site, across the River Darent/Dartford Creek. The Inner Zone represents the area within which the risk of serious injury, including that of fatality, is assessed at 10.0 chances per million (cpm). HSE advises against the proposed development. 4. In defining the Consultation Zones, HSE used information supplied by GSK in connection with its hazardous substances consent (deemed consent) under the Planning (Control of Major-Accident Hazards) Regulations 1999 (SI 1999 No.981). The hazardous substances deemed consent for the GSK site is for quantities of chemicals in broad categories - very toxic; toxic; oxidising; flammable; highly flammable; and extremely flammable. In the absence of information not only on specific chemicals but also on the volume and location of fixed vessels, HSE undertook its assessment of the risks associated with the installation for the purpose of defining the Consultation Zones, and its risk assessment of the appeal proposal, according to 'exemplar' substances and according to the maximum quantity of the hazardous substances permitted by the deemed consent; and made assumptions about the size of fixed and moveable containers according to the Regulation applying to deemed consents."
[16]In paragraph 4 of the decision letter it will be noted that Inspector referred to "deemed consents" in respect of the GSK site. Those consents had been issued under Section 11 of the Planning (Hazardous Substances) Act 1990. That Act enabled planning authorities to control the quantities of certain hazardous substances present on land irrespective of whether any planning permission for the control of "development" is also needed.[17]Mr Wright, in his written proof before the Inspector, dealt with this aspect as follows:
"4.1. Our records indicate that in 1992 and 2000, Hazardous Substances Consent was deemed to be granted for the following classifications of hazardous substance: very toxic, toxic, highly flammable, flammable, oxidising and substances dangerous to the environment at the GSK Dartford site... Our records also show that in 2003 and 2004 variations to the Hazardous Substances Consent were granted by Dartford Borough Council at the same site... 4.2. HSE's advice to Dartford Borough Council, in relation to the deemed and express Hazardous Substances Consents, was based on predictive assessments of toxic, explosive and flammable hazards. These assessments were undertaken by HSE's Methodology and Standards Development Unit (MSDU, now the Risk Assessment and Process Integrity Unit). 4.3. Storage operations for toxic substances at the GSK site have a number of associated hazards, a major one being the accidental release of a very toxic liquid from a movable container, and the subsequent evaporation of the spilt pool. MSDU considered the significance of this major accident hazard by modelling the consequences of the harmful effects to an exposed individual. Because the deemed consent entitlement held by GSK does not identify the toxic substances that can be stored and used on site the HSE risk assessment has to identify an envelope of risks that represents the most hazardous substances within the toxic classification. This consent entitlement allows GSK to vary the actual substances and quantities within the toxic classification at any time without the requirement for further notification. It is not practicable for HSE's advice to keep track of such changes and therefore an envelope of risks approach is used. 4.7. For the purposes of providing land-use planning advice, and in relation to the planning application under consideration, only the CD generated by the North area of the site is of concern. As explained above this CD is divided into three development control plan zones consisting of an inner, middle and outer zone. The middle and outer zones are defined by the Consent for movable containers of very toxic and toxic substances. The hazard and the risk comes from the inner zone overlap and hence the inner zone is defined by the envelope of the inner zone resulting from the Consent for highly flammable liquids and the inner zone resulting from the Consent for movable containers of very toxic and toxic substances... 5.2. The whole of the site lies within the CD of GSK Ltd. The part of the development for residential use extends across the inner and middle zones, and more than 50% of the site lies within the Inner Zone. 5.3. As noted above, it is HSE's policy to advise against significant housing in the consultation Inner Zone. This policy (among others) is reflected in the advice generated by PADHI and therefore in HSE's response to the consultation on the applicants' proposal... 6.1. In the process of forming a judgement, HSE has recognised the views of the Advisory Committee on Major Hazards as expressed in paragraphs 108 and 109 of their Second Report (Appendix J) which reads as follows: '108 .... The HSE is also frequently asked to comment on proposals to develop or to redevelop land in the neighbourhood of an existing hazardous undertaking where there may already be other land users which are closer and possibly incompatible. In these cases HSE tell us that it takes the view, which we fully endorse, that the existence of intervening development should not in any way affect [the] advice that it gives about the possible effects of that activity on proposed developments which may appear to be less at risk than the existing ones.' '109 .... The overall objective should always be to reduce the number of people at risk, and in the case of people who avoidably remain at risk, to reduce the likelihood and the extent of harm if loss of containment occurs .......' ... 7.1. In the light of its assessments of the hazardous installation and of the development proposal, which took into account the size, nature and other characteristics of the proposed development, HSE considers the residual risk at the development site to be sufficiently high for HSE to advise against the granting of planning permission for application ref DA/07/00298/FUL."
[18]I note in particular that in paragraph 4.3 Mr Wright stated the HSE's position to be that the assessment of risk in this particular case should be made by reference to what he called "the envelope of risks that represents the most hazardous substances within the toxic classification", reflecting the generic terms of the deemed consents which were held by GSK.[19]Mr Dinkin confirmed that the inner zone defined by the HSE, on the basis explained by them, had been correctly plotted on the plan used at the inquiry, assuming that that exercise was to be based on the envelope of risks corresponding to the deemed consent. He also confirmed that, on that particular basis, the claimant accepts that 82 out of 96 of the proposed dwellings lie within that defined inner zone.[20]One of the main issues raised by the claimant was that the risk assessment should instead be based upon the specific type and quantity of materials present on the site, rather than the generic list which forms the basis for the deemed consents. That argument was advanced in the report of Mr Steve Kershaw. I draw attention to the following paragraph in Mr Kershaw's written proof: "The planning legislation rightly allows the site operator some flexibility in making changes to processes and activities on site. It would be unreasonably burdensome on GSK to attempt through the planning system to control every new chemical process, or every new chemical substance on site, so long as the overall risk was not substantially increased. HSE and the EA have the powers and technical expertise to assess, and if necessary prevent changes which did unreasonably increase the risk, either to people on site, or the surrounding area. The consequence of this, is that the information required under the planning legislation is different, and more limited than that provided to HSE under the COMAH regulations. Fortunately, we have a copy of the COMAH list, provided by HSE to Dartford Council. It is helpful to compare the information provided under the two sets of regulations All numerical values relate to quantities in tonnes".[21]Mr Kershaw was there referring to a notification by the site operator, GSK, of quantities of dangerous substances pursuant to Regulation 6 of COMAH. Regulation 6 requires notifications containing the information specified in Schedule 3 to be made at various stages in the lifetime of a hazardous installation. Under Regulation 6(1) a notification in accordance with that schedule has to be given prior to the start of construction. Under Regulation 6(2) a notification has to be given within a reasonable period of time prior to the start of operation.[22]Schedule 3 gives a list of the headings under which information is to be provided, including "the quantity and physical form of the dangerous substances present". "Dangerous substance" is a term defined in Regulation 2(1). The operator also has to give a description of the activity or proposed activity of the installation concerned.[23]The pertinent regulation for the purposes of this challenge is Regulation 6(4), which requires:
"The operator shall notify the competent authority forthwith in the event of - (a) there being any significant increase in the quantity of dangerous substances notified - (i) under this regulation... (b) there being any significant change in - (i) the nature or physical form of the dangerous substances so notified (ii) The processes employing them, or (iii) any other information notified to the competent authority in respect of the establishment..."
[24]I note in passing Regulation 6(5), which declares that notification is not required under Regulation 6 in respect of any information which has been included in a safety report. A safety report is defined by Regulation 2, in part by reference to the requirements of Regulation 7, to which I shall come later.[25]As I have said (para. 20), Mr Kershaw produced in his report a table which compared the quantities of generic substances, or exemplars, assumed by the HSE in order to represent the risk envelope of the deemed consent with the generally smaller quantities of specific chemicals identified by the operator in a single Regulation 6 notification made in July 2000. He explained how HSE's assessment of the envelope of risks involved a more pessimistic estimate of the risk than would be arrived at by relying solely upon that most recent Regulation 6 notification. For example, he pointed out that HSE had used methyl chloroformate as an exemplar to model the hazardous substances consent for the storage of "very toxic substances". Mr Kershaw pointed out that the 2000 notification revealed that methyl chloroformate was not present on the site. He also explained the lower level of risk posed by those "very toxic substances" which were in fact present on the site.[26]Mr Kershaw sought to address the scope for possible changes in the future from the Regulation 6 notification made in 2000 as follows:
"It can be argued that under PCMHR, GSK can make many changes which would increase the toxicity of the substances they handle, and the offsite risk. The planning system quite generally assumes that once permission is given, it can be exploited to the fullest extent within the defined scope. Future changes can be controlled by conditions attached to the permission but it is effectively impossible either to retrospectively rescind permission, or impose new conditions. Health and safety legislation does not work in this way. HSE visit major sites like GSK regularly and can raise new issues with the site occupier at any time. There is no automatic assumption that just because an activity was legal and acceptable at one date, that it will always be so. New requirements can and are imposed, as a consequence of new knowledge about the risks, advances in the technology available to control those risks, or new regulations. In the case of potential changes at the GSK site the COMAH regulations give HSE a powerful tool to control those changes. If new storage arrangements or processes were being introduced the safety case would need to be reviewed, to see that it was still valid. Specially HSE would expect GSK to consider the risks associated with any new activities involving very toxic substances. When introducing new processes, GSK would need to take account of the principles of inherent safety, and process intensification. Inherent safety is the principle of avoiding hazards altogether, e.g. by not using very toxic materials. Process intensification is a principle of minimizing the amount of dangerous material in a process at any one time as a way of minimizing the risk if the process goes wrong. These principles are formally set out in the COMAH guidance. There can be no absolute assurance that GSK would not introduce new materials and risks that would increase the offsite hazard from that currently existing, but health and safety legislation gives HSE considerable ongoing powers to prevent this, unless a process had to be done on this site, and no safer production method was available."
[27]He referred to difficulties he had encountered in obtaining information from GSK about their usage of dangerous substances on site. In his conclusions, I note the following points: 1. He recognised that the information to which he had access was incomplete; 2. It was very likely that a risk assessment using the chemicals actually on site (ie as notified in 2000) would reduce the extent of the inner zone within which the conclusion would be to advise against residential development; 3. As Mr Dinkin confirmed, Mr Kershaw did not produce any plan with revised zones to show what the modified area would be, or how it was derived. 4. He relied upon COMAH Regulations in order to control the future potential for the existing level of risk, as he assessed it, to be increased. Circular 04/00[28]I then turn to pertinent parts of Circular 04/00, which is entitled "Planning controls for hazardous substances":
"9. The hazardous substances consent controls are designed to regulate the presence of hazardous substances so that they cannot be kept or used above specified quantities until the responsible authorities have had the opportunity to assess the risk of an accident and its consequences for people in the surrounding area and for the environment. They complement but do not override or duplicate, the requirements of the Health and Safety at Work etc Act 1974 and its relevant statutory provisions (defined at s.53 of that Act) which are enforced by the Health and Safety Executive. Even after allreasonably practicable measures have been taken to ensure compliance with the requirements of the 1974 Act, there will remain a residual risk of an accident which cannot entirely be eliminated. These controls ensure that this residual risk to persons in the surrounding area and to the environment is properly addressed by the land use planning system."
It is thus clear that the circular gives advice on how to assess, under the planning system, the "residual risk" posed by sites using hazardous substances, after the controls under the 1994 Act and related legislation had been applied by the HSE.[29]Under the heading "Applying For Hazardous Substances Consent", paragraph 37 reads as follows:
"In submitting an application, applicants are required to list first any named substances appearing in Part A of Schedule 1 for which they are applying for a hazardous substances consent, then those in Part B and finally those in Part C. Where they are applying for a consent in respect of substances falling within Parts B or C of the Schedule, they may list them under the relevant category or description or they may choose to list them specifically by name. While this may not always be practicable, applicants should be encouraged to list the individual substances and amounts for which consent is being sought. This will ensure HSE and the Environment Agency are better able to assess any risks from the proposed presence of the hazardous substances and to apply appropriate conditions. For risk assessment purposes HSE will treat unspecified generic substances on the basis of exemplar substances within each category."
[30]Mr Dinkin placed particular reliance upon paragraph 41 of the circular, which reads as follows:
"The role of HSE and the Environment Agency is to advise the hazardous substances authority on the risks arising from the presence of hazardous substances. HSE has the expertise to assess the risks arising from the presence of a hazardous substance to persons in the vicinity; the Environment Agency has the expertise to assess and advise upon the likely risks arising to the environment. However, the decision as to whether the risks associated with the presence of hazardous substances, either to persons or to the environment, are tolerable in the context of existing and potential uses of neighbouring land is one which should be made by an elected authority (the hazardous substances authority)."
[31]Paragraph 72 of the circular confirms the legal position that, as with a planning permission, a hazardous substances consent provides an entitlement that runs with the land.[32]Important advice is also give in Annex A to the circular. A1 provides:
"HSE's role in the land use planning system is to provide local 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."
Paragraph A4 provides:
"HSE's advice to planning authorities in respect of proposed developments in the vicinity of hazardous installations is based on the following general principles: • the risk considered is the residual risk which remains after all reasonably practicable preventive measures have been taken to ensure compliance with the requirements of the Health and Safety at Work etc Act 1974 and its relevant statutory provisions..."
A5 provides:
"In view of their acknowledged expertise in assessing the off-site risks presented by the use of hazardous substances, any advice from HSE that planning permission should be refused for development for, at or near to a hazardous installation or pipeline, or that hazardous substances consent should be refused, should not be overridden without the most careful consideration."
Paragraph A7 reads:
"For each type of development HSE's advice to local planning authorities will take account of the maximum quantity of a hazardous substance permitted by a hazardous substances consent and any conditions attached to it."
The Decision Letter[33]I then turn to the decision letter of the Inspector. It is convenient to quote fully paragraphs 5-10 of that decision:
"5. More detailed information on the specific substances present on the GSK site is available in the hazardous-substance Notification which GSK gave to HSE under the COMAH Regulations (SI 1999 No.743). That Notification lists specific substances rather than categories of substances - though it seems that under Regulation 6(2) and Schedule 3 the information notified is required to be sufficient to identify the dangerous substances or category of dangerous substances notified [my emphasis]. Nevertheless, the evidence is that those chemicals which are specified in the GSK Notification behave in a manner which constitutes a lesser hazard than would be posed by the exemplar substances (which are not listed as present on site). The Appellant argues that this is a material consideration of such weight that, in the careful consideration required by Circular 4/2000, it ought to override the advice from HSE that the proposed development should be refused. 6. However, in the GSK Notification under SI 1999 No.743 there appears an inconsistency, in that 8 tonnes overall of very toxic substances are recorded, but the quantities of the 4 chemicals specified under that heading add up to 21 tonnes, not 8 tonnes. The Notification under SI 1999 No.743 may not therefore constitute a wholly accurate measure of the chemicals and quantities present on the GSK site. Moreover, and significantly, the Notification merely represents the 'snapshot' situation at the point in time at which it was made by the current operator: whereas the Hazardous Substances Consent granted under the Planning (Hazardous Substances) Act 1990 and the Planning (Control of Major Accident-Hazards) Regulations 1999 (SI 1999 No.981) provides an entitlement which runs with the land (Circular 4/2000 ¶72). Whilst ¶37 of the Circular states that applicants should be encouraged to list the individual substances and amounts for which consent is being sought, there is no requirement for them to do so. 7. Under the terms of the hazardous substances consent for the site, there is considerable freedom to introduce substances not present at the time of Notification, and which behave in a manner approaching the greater degree of hazard represented by the exemplar substances. In assessing the potential effects of (exemplar) toxic spillages, releases and fires (taking into account the scope of the consent to allow the use of moveable containers on the GSK site) HSE made reasonable assumptions. Though inclining to caution, those assumptions do not represent the worst possible outcome in every instance, and are not cautious to an unrealistic or unreasonable degree. 8. The controls available to HSE as competent authority under the Health and Safety at Work Act 1974 and the COMAH Regulations (SI 1999 No.743) include the ability to require safety reports, on-site and off-site emergency plans, provision of information to the public, inspections and investigations to ensure that the operator has taken appropriate measures to prevent major accidents and to limit their consequences. But those controls do not allow HSE to revoke or modify the hazardous substances consent, which is issued under the Planning (Hazardous Substances) Act 1990 and the Planning (Control of Major-Accident Hazards) regulations 1999 (SI 1999 No.981), and for which the HSE is an advisory body and not the hazardous substances authority. Nor do they eliminate the residual risk which it is the concern of SI 1999 No.981 to address via the land use planning system. Consequently, little weight should be attached to the existence of those controls under SI 1999 No.743. Little weight should be accorded to the fact that, at the time of Notification, the specific chemicals then present on the GSK site happened to give rise to a lesser level of risk than would the exemplar substances. That weight is especially slight given the lack of response by GSK to the Appellant's request for information; the lack of confirmation or suggestion by GSK that it has any intention of revising the current hazardous substances consent in line with its most recent Notification; and indeed the absence of any representations by GSK to the Inquiry. 9. The Inner Consultation Zone includes a small area of existing residential development, which largely pre-dates the definition of the Zones. HSE accepts that the current risks given the number of existing residents are tolerable but points out that each additional dwelling would increase the number of people exposed to residual risk: that is, to the residual risk which remains after all reasonably practicable preventative measures have been taken to ensure compliance with the requirements of the Health and Safety at Work Act 1974and its relevant statutory provisions (including the COMAH Regulations at SI 1999 No.743). In introducing 96 additional dwellings (which would replace a former treatment plant now demolished), the appeal proposal could lead, given an average occupancy rate of 2.5 persons per dwelling, to the exposure of around 240 additional people to the residual risks associated with the full implementation of the hazardous substances consent on the neighbouring site currently occupied by GSK. 10. In comparison with the small area of existing residential development within the Inner Zone, the appeal site is significant in its size and in the potential number of its future residents. Given the proposed mix of dwellings (including an element of affordable housing) future residents would be likely to include both young children and elderly people, who are inherently more vulnerable. In these circumstances I conclude that the proposed development would unacceptably increase the number of people exposed to residual risk associated with proximity to the adjacent GSK site on which the presence of hazardous chemicals has consent."
[34]Having set out the background, I turn to the grounds of challenge, of which four were argued. Ground 1[35]The claimant contends that the Inspector failed to apply the relevant test for the determination of new developments within the consultation zone associated with the GSK installation in accordance with the relevant guidance in Circular 04/00. It is submitted that the Inspector failed to carry out an assessment of actual risk, that she based her decision solely on the PADHI risk assessment and that she did not ask herself the correct question, ie whether the actual level of residual risk would be "tolerable".[36]That submission was based upon the last sentence of paragraph 41 of Circular 04/00. It has been put forward as a legal challenge based upon an alleged misinterpretation of Government policy. During the course of argument, Mr Dinkin, on behalf of the claimant, confirmed that the correct approach for the appraisal of this criticism was set out by the Court of Appeal in the case of R v Derbyshire County Council ex parte Woods [1997] JPL 958.[37]I agree with the submissions advanced on behalf of the Secretary of State, that paragraph 41 is concerned with the determination of an application for hazardous substances consent, not a planning application for new development in the vicinity of an existing hazardous installation. The advice in Circular 04/00 as to the approach to be taken for the latter is contained, for example, in paragraph A4 of that same circular. That paragraph does not refer to the concept of tolerability of risk. Mr Dinkin accepted that the circular does not in terms apply the tolerability of risk test to proposals such as thosepromoted by his client, but he submits that by analogy the same approach should be taken as for applications for hazardous substances consent.[38]It seems to me that this argument is not concerned with the interpretation of the language which has actually been used in the circular, but rather with the filling-in of what the claimant sees as a lacuna in the circular. It is not for the court to usurp the Secretary of State's policy-making role by treating a test which has been expressly formulated for use under the HSC regime as one which can be read across to development control, under the planning system, for proposals in the vicinity of a hazardous installation.[39]Mr Dinkin also accepted that his expert witness, Mr Kershaw, had not argued for the application of the tolerability of risk approach in this case, in contrast to the PADHI approach. Even if, which I do not accept, it lay within the remit of this court to embark upon the exercise suggested by Mr Dinkin, in my judgment the court does not have the materials to enable it to assess whether the claimant's suggested policy approach is indeed appropriate.[40]In my judgment it would be inappropriate for the court to go any further on this aspect, particularly in the light of the limited way in which this issue was put before the Inspector. I reject Ground 1 for the reasons that I have given. Ground 2[41]In summary, the claimant submits, first of all, that in the light of paragraph A1 of Circular 04/00 the Inspector was obliged to assess the nature and severity of the risks posed by the existing hazardous installation. Secondly, they submit that that requirement involved using the best information available. Thirdly, they submit that paragraph 37 of Circular 04/00 encourages applicants for hazardous substances consent to precisely specify chemicals and quantities in order that a better assessment of risk may be made. Fourthly, they submit, accordingly, in this case the assessment of the risk posed by the existing installation should have been based upon the actual inventories set out in the Regulation 6 notification given in 2000 rather than by the exemplar substances used to model the envelope of risks represented by the hazardous substances consents, but which were not present on site.[42]With great respect, I disagree. Paragraph 37 is dealing with the assessment of an application for hazardous substances consent. In this case, the Inspector was not determining an application for hazardous substances consent, but with the implications of existing hazardous substances consents for this particular planning proposal. Moreover, those deemed hazardous substances consents had been granted in broad terms. In my judgment, Ground 2 could not succeed merely by relying upon the terms of paragraph 37 of the circular. Likewise, the Inspector cannot be criticised for concluding that the HSE's approach accorded with paragraph 37 of the circular, in a situation where the hazardous substances consent has been expressed in broad or generic terms rather than by reference to specific quantities of specified chemicals. I see no error of law in a risk assessment which has been carried out on that basis, or any grounds for saying that such a risk assessment fails to comply with paragraph 37 of the circular.[43]As to the remaining arguments under Ground 2, Mr Dinkin accepts that the Inspector did take his client's argument on this part of the appeal into account. In other words, it was not ignored, as can be seen from paragraph 5 of the decision letter. He also accepts that the Inspector was entitled to take into account evidence based upon the envelope of risk represented by the deemed hazardous substances consent. In my judgment, that concession was entirely correct.[44]In the light of those two concessions, it seems to me it was a matter for the Inspector to decide how much weight to give, on the one hand, to the claimant's alternative approach, based upon the Regulation 6 notification, as opposed to, on the other, the evidence from the HSE, based upon an assessment of the implications of the hazardous substances consents. She did that, in my view, in paragraphs 4-10 of her decision letter.[45]The remaining part of the argument under Ground 2, which perhaps straddled parts of Ground 3, became a detailed critique of the rationality of the Inspector's decision, or the adequacy of her reasons, as expressed in particular sentences.[46]First of all, Mr Dinkin says that paragraph 5 of the Inspector's decision letter recognised that the HSE's approach exaggerated, as he puts it, the level of risk posed by the existing installation. But in my judgment the Inspector did not say that the HSE's approach exaggerated the level of risk; she simply accepted a rather different point, namely that the chemicals specified in the Regulation 6 notice would represent a "lesser hazard". That left open the question as to how much weight should be given to the claimant's approach.[47]Secondly, he criticises the first sentence of paragraph 6 of the decision letter, which referred to an inconsistency in the Regulation 6 notice. The Inspector was under the impression that the four specified very toxic chemicals in that notice could be added up so as to reach, in aggregate, a total weight of 21 tons, rather than the specified ceiling of 8 tons for very toxic chemicals overall.[48]There is some limited force in the point made that she failed to appreciate that the overall maximum ceiling was only 8 tonnes. Nevertheless, there is an apparent inconsistency in the Regulation 6 notice, in that the quantity of one specified material, namely phosphorus pentachloride, (11 tonnes) does exceed the maximum quantity for all very toxic substances of 8 tonnes. Mr Dinkin frankly accepted that he could not explain that, nor was it dealt with by Mr Kershaw in his proof. In those circumstances, I do not think there was any significant error in that part of the Inspector's reasoning. Certainly, I do not accept that she said anything which could possibly have affected the ultimate conclusion to which she came or the important parts of the reasoning upon which that conclusion rested.[49]Thirdly, Mr Dinkin says that the Inspector failed to have regard to the HSE's powers to regulate GSK's introduction of additional substances in excess of those notified in 2000, under Regulation 6 of COMAH, but nonetheless within the ambit of the hazardous substances consents. He also argues that in paragraph 8 of the decision letter the Inspector erred in law by concluding that "littleweight" should be attached to the existence of controls available to the HSE under its powers under the 1974 Act, in particular under the COMAH regulations.[50]For reasons which I have already given, that part of the argument must fail under Ground 2. It was a matter for the Inspector to decide how much weight to give to the rival approaches put before her. It seems to me that this aspect, insofar as it has any merit, falls to be considered under Ground 3. My overall conclusion is that Ground 2 fails in all respects. Ground 3[51]The first part of Ground 3 criticises paragraph 8 of the decision letter, in that it attached little weight to the existence of the controls available to the HSE under the 1974 Act and the COMAH Regulations. In addition, it is submitted that the Inspector was required by Circular 04/00 at paragraph A4, when assessing residual risk, to assume that all reasonably practical measures are taken to ensure compliance with the requirements of the 1974 Act and its relevant statutory provisions, but it is said the Inspector wrongly failed to do so.[52]Further or alternatively it is submitted that the reasons given by the Inspector for her conclusion in paragraph 8, for giving little weight to what is described as the "complimentary controls", were improper and/or irrational.[53]Both Mr Kershaw, at the inquiry, and Mr Dinkin, in this court, relied upon the notification requirement under Regulation 6 of COMAH, but without giving any real indication as to what controls the HSE could exercise over alterations to substances and quantities notified in July 2000. Mr Kershaw did not rule out any such increases but in his report he did not attempt to assess what the effect would be on the application of the PADHI method and the drawing up of a revised inner zone. That much was conceded by Mr Dinkin during argument.[54]I broadly accept Mr Coppel's analysis of the COMAH Regulations. Regulation 3 defines the establishments to which the COMAH Regulations are applicable. It was common ground that they applied to the GSK site. Regulation 4 imposes a general duty:
"Every operator shall take all measures necessary to prevent major accidents and limit their consequences to persons and the environment."
I note that the focus of the regulation relates to "major accidents", as defined in Regulation 2. I accept the submission on behalf of the Secretary of State that the regulation does not purport to cover all aspects of risk or hazard to the public.[55]Regulation 5(1) requires an operator to prepare an accident prevention policy. Regulation 5(4) provides that where the nature or quantity of dangerous substances present on a site is modified, the operator has to review, and if necessary, revise the policy document. That does not impose a control upon whether such a change may take place at all.[56]I have already summarised the relevant content of Regulation 6. As such, Regulation 6 imposes no control over changes in the substances stored on site, or used on site, once notified. It may well be that the information provided under Regulation 6 enables the HSE to exercise powers under, for example, the 1974 Act. If so, Mr Kershaw made no attempt to assess by how much the GSK risk could increase, as compared with that posed by the notification in 2000.[57]Regulations 7(1) and (5) require safety reports to be provided prior to the start of construction of an establishment and, subsequently, prior to its operation. By regulations 7(4) and (6), the operator may not start construction or operation until he receives from HSE "the conclusions of its examination of the report".[58]Regulation 7(7) requires that the safety report should include the information specified by Schedule 4. The focus of the required information is upon preventing major accidents and dealing with their consequences. It is fair to say that parts of Part 2 of Schedule 4 may go further (for example, paragraph 5). However, the claimant did not, in this case, make any attempt to assess what would be the practical implications of compliance with Regulation 7, so far as the risk posed by an increase in the inventory of chemicals on site up to the envelope represented by the deemed hazardous substances consent, or any intervening position. In essence, as Mr Dinkin accepted, the claimant's case rested upon the assumption that the risk would not increase beyond the level of risk based solely of the July 2000 notification. No real justification for that implicit stance was advanced in the evidence before the Inspector, which was placed before the court. The claimant's case on this aspect was very generalised. Hence my comment, towards the beginning of this judgment, that the merits of the legal challenges advanced in this court have to be considered in the context of the case, as presented to the Inspector.[59]Regulation 8(1) requires reviews of the safety report, within the framework of Regulation 7. Regulations 9-13 require emergency plans to be put in place. They are directed largely at the consequences of major accidents and do not give the HSE specific controls to prevent increases in dangerous substances held on site.[60]Regulations 17 and 18 deal with the functions of a competent authority. Where the HSE receives a safety report under Regulation 7, then it is to give its conclusions upon its examination of the report within a reasonable period of time and it is also to exercise its powers under Regulation 18 to prohibit the operator of the establishment, where the measures taken by the operator for the prevention and mitigation of major accidents are "seriously deficient". Thus, I accept the analysis by Mr Coppel that in essence these regulations upon the prevention of and dealing with the consequences of major accidents, as opposed to a comprehensive assessment of the risks posed by an existing installation. In my judgment the first sentence of paragraph 8 of the decision letter is a brief but fair summary of the controls under COMAH.[61]HSE made it clear that their assessment, although based upon the envelope of risk posed by hazardous substances consent, nevertheless was an assessment of residual risk on that basis, after taking into account all reasonably practicable measures required by the 1974 Act and other relevant statutory provisions. That accords with the definition of residual risk in Circular 04/00, paragraph 9 and paragraph A4, and was taken into account by the Inspector in her explicit reference to the definition of residual risk in paragraph 9 of the decision letter.[62]Beyond that, Mr Dinkin made criticisms of particular phrases used by the Inspector. In paragraph 8 of the decision letter, the Inspector said this of the COMAH controls and the 1974 Act:
"... those controls do not allow HSE to revoke or modify the hazardous substances consent... and for which the HSE is an advisory body and not the hazardous substances authority."
Strictly speaking, as Mr Dinkin said, the Inspector was correct, but under Section 14 of the Planning (Hazardous Substances) Act 1990, the local planning authority could modify or revoke such a consent, albeit subject to a potential liability to pay compensation under Section 16. However, Mr Dinkin did state that the claimant did not raise the likelihood of those powers being exercised by Dartford Borough Council at the inquiry. Therefore, in my judgment, nothing turns on this possible criticism, that he suggested, of that part of paragraph 8 of the decision letter.[63]He went on to criticise a subsequent passage in paragraph 8, when the Inspector said this:
"Nor do they eliminate the residual risk which it is the concern of SI 1999 No.981 to address via the land use planning system."
In my judgment, self-evidently what was said by the Inspector was correct. Her sentence accurately reflects the definition of residual risk.[64]Then he criticised the following sentence in paragraph 8 of the decision letter:
"Consequently, little weight should be attached to the existence of those controls under SI 1999 No.743."
However, in fairness that sentence should be read together with the following sentence, which states:
"Little weight should be accorded to the fact that, at the time of Notification, the specific chemicals then present on the GSK site happened to give rise to a lesser level of risk than would the exemplar substances."
[65]In my judgment, those were conclusions to which the Inspector was entitled to come, as a matter of law, having reviewed the controls available under the COMAH Regulations and the nature of the claimant's case put before the Inspector. There was nothing irrational, improper or inadequate about the reasons she gave, when read as a whole. I reject the contention that the Inspector disregarded the COMAH controls. She explicitly took them into account and decided how much weight should be given to the assessment based upon the Regulation 6 notification in July 2000. Therefore, Ground 3 fails. Ground 4[66]Ground 4 is based upon paragraphs 13 and 17 of the amended claim. It is a challenge to a part of paragraph 9 of the decision letter, in which the Inspector says:
"HSE accepts that the current risks given the number of existing residents are tolerable but points out that each additional dwelling would increase the number of people exposed to residual risk: that is, to the residual risk which remains after all reasonably practicable preventative measures have been taken to ensure compliance with the requirements of the Health and Safety at Work Act 1974 and its relevant statutory provisions (including the COMAH Regulations at SI 1999 No.743)."
That sentence then leads on to the rest of the Inspector's analysis and reasoning in paragraphs 9 and 10 of the decision letter. In particular, in paragraph 10, the Inspector expressed her judgment about the potential vulnerability of some of the future residents who might be expected to live in the proposed dwellings, including young children and elderly people. She went on to express her overall conclusion that the proposed development would "unacceptably increase the number of people exposed to residual risk associated with proximity to the adjacent GSK site on which the presence of hazardous chemicals has consent".[67]Mr Dinkin submits that the central issue at the inquiry, so far as his clients were concerned, was whether the level of risk was "tolerable" and that if the level of risk for residents already living within the inner zone was tolerable, then to accommodate more people in that zone at a level of risk defined as "tolerable", would by definition be tolerable or acceptable. He said that that would not be harmful and could not support a reason for refusal. This argument was of course based upon the answer given by the HSE's witness in cross-examination, as recorded by the Inspector in paragraph 9 of the decision letter and also in Mr Bullworthy's first witness statement. The short answer is that the claimant has already failed under Ground 1 in the argument that the Inspector was legally obliged to apply a tolerability test, rather following the guidance of HSE using its PADHI land use planning principles.[68]Secondly, the Inspector concluded that it would objectionable for there to be a significant increase in the number of people exposed to a residual risk within an inner zone defined by a risk criterion of serious injury, including fatality of 10 chances per million: see paragraph 3 of the decision letter.[69]In my judgment, there is nothing irrational about the application of that criterion which, on the evidence before the Inspector, derived from the HSE's PADHI technique. How much weight is to be given to that approach was a matter for the Inspector and I am unable to say that she has taken an irrational approach to the assessment of the evidence. There has been no discussion by the claimant in this court and, as far as I can see, in the material put before the Inspector as to the meaning of the tolerability criterion, the context in which it is applied and indeed how it is applied. In these circumstances, I do not see how this type of challenge could succeed in this court. Accordingly, Ground 4 fails.[70]My overall conclusion is that this application fails and the application is dismissed.[71]MR COPPEL: I am grateful, my Lord. Can I ask for a formal order for it to be dismissed and I ask that the claimant pay the Secretary of State's costs, summarily assessed. Those figures have been agreed by my learned friend and me.[72]THE DEPUTY HIGH COURT JUDGE: I was going to say I would agree with them too. I do not think they are open to criticism. My order is that the application is dismissed. I make an order that the claimant should pay the first defendant's costs, which I summarily assess in the figure of £12,418. Is that not the agreed figure?[73]MR COPPEL: No, we discounted ourselves, down to £10,520.[74]THE DEPUTY HIGH COURT JUDGE: I will substitute the figure of £10,520.[75]MR GREEN: I have an application to make although, I have to say, it is not the usual application. Mr Dinkin sends his apologies. I stand in his shoes, for today's purposes. He has instructed me that he would very much like to consider your Lordship's judgment in some detail to decide whether or not this matter should be taken any further. I would ask simply for an extension of time within which to lodge a notice of appeal, because I am not in a position to make sensible submissions now as to whether permission to appeal --[76]THE DEPUTY HIGH COURT JUDGE: You do not have the benefit of a handed down judgment.[77]MR GREEN: I do not. Those instructing me would like to consider your Lordship's judgment before making any such application for permission to appeal.[78]THE DEPUTY HIGH COURT JUDGE: What do you suggest?[79]MR GREEN: I simply ask for an extension of time to lodge the notice of appeal. I would ask for permission for that period to be 28 days after the official transcript is produced.[80]THE DEPUTY HIGH COURT JUDGE: What do you say about that?[81]MR COPPEL: My Lord, I do not have any difficulty with the suggestion that time start to run from the date of the transcript. Everyone has been there. It is difficult to take an accurate note. What I would say is my learned friend does have the gist of what your Lordship says.[82]THE DEPUTY HIGH COURT JUDGE: I would like to think so.[83]MR COPPEL: In the circumstances, it would appear that the more appropriate course would be to allow 14 days after transcript of the judgment is delivered.[84]MR GREEN: I may have the gist, although that gist is fairly shaky, given my limited involvement in this matter; Mr Dinkin does not and he is the one to whom those instructing me will turn for advice. My Lord has given a very detailed survey of the relevant regulations in this area and those instructing me will need to consider that in some detail.[85]THE DEPUTY HIGH COURT JUDGE: That was dealt with in argument by Mr Coppel. There is nothing particularly novel about that part of the judgment, if any.[86]MR GREEN: 21 days is the period that the rules suggest that the notice of the appeal should be lodged within.[87]THE DEPUTY HIGH COURT JUDGE: You also have to ask for permission, do you not?[88]MR GREEN: I ask there 28 days, because the application for permission could then be made on paper within that period.[89]THE DEPUTY HIGH COURT JUDGE: To whom?[90]MR GREEN: To your Lordship first of all and, if that is refused, to the Court of Appeal.[91]MR COPPEL: What I would suggest, if I may, is the issue of permission be dealt with by your Lordship first.[92]THE DEPUTY HIGH COURT JUDGE: At this stage now?[93]MR GREEN: At this stage.[94]THE DEPUTY HIGH COURT JUDGE: That is what I had in mind.[95]MR COPPEL: Then extra time, as sought by my learned friend, although not in length as sought by my learned friend, I have no objection to. If my learned friend and his leader want to trouble the Court of Appeal, they can do so then.[96]THE DEPUTY HIGH COURT JUDGE: I think we ought to deal with permission now.[97]MR GREEN: All I can say is that the Court of Appeal may take a different view to the view your Lordship takes.[98]THE DEPUTY HIGH COURT JUDGE: They may, but I am afraid I am not going to give you permission. I do not think there is a reasonable prospect of success, nor is there any wider issue of public importance raised by this particular matter. That deals with that. (Pause).[99]I am going to extend time for the making of an application to the Court of Appeal, which must include permission to appeal, and service of any notice of appeal until 14 days after the release of the approved transcript by the shorthand writer.[100]MR GREEN: I am obliged.