Court Upholds Legal Principles in Land Use Planning Near Hazardous Sites: Unicoin (Dartford) Ltd v Secretary of State for Communities and Local Government & Anor

Citation: [2008] EWHC 3214 (Admin)
Judgment on

Introduction

In the case of “Unicoin (Dartford) Ltd, R (on the application of) v Secretary of State for Communities and Local Government & Anor” ([2008] EWHC 3214 (Admin)), several key legal principles and doctrines were analyzed within the context of land use planning, hazardous substances control, and the planning inquiry process. This article elucidates the legal issues and principles at play, linking them directly to the case content.

Key Facts

Unicoin (Dartford) Limited, the claimant, sought to quash the decision of an Inspector on behalf of the Secretary of State for Communities and Local Government. The decision challenged was given following a planning inquiry, centered on the proposed development of a residential area near an existing hazardous chemical site operated by Glaxo Smith Kline (GSK). The main issue revolved around the safety considerations associated with the proposed development in proximity to hazardous substances and the assessment of such risks under the Town and Country Planning Act 1990 and related regulations.

1. Interpretation of Government Policy

The case hinged on how government policy, specifically Circular 04/00 which provides guidance on planning controls for hazardous substances, should be applied. The claimant argued that the Inspector failed to apply the ‘tolerability of risk’ as indicated in the circular for determining applications of hazardous substances, and by analogy, it should have been used for planning applications for new developments near hazardous sites. This was rejected by the court, which determined that express criteria defined for hazardous substances consent cannot be implicitly applied to development control. This principle aligns with the case “R v Derbyshire County Council ex parte Woods” ([1997] JPL 958), where the court must interpret the language used rather than fill perceived gaps in policy.

2. Assessment of Residual Risk

The Inspector followed the “envelope of risk” assessment advised by the Health and Safety Executive (HSE) based on the hazardous substances ‘deemed consent’ comprising unspecified substances. The principle here was that the risk assessment must reflect the residual risk after all reasonable measures under the Health and Safety at Work Act 1974 are applied, as per Circular 04/00.

3. Weighing of Risk Based Controls

The court reasoned that Regulation 6 of the COMAH (Control of Major Accident Hazards) Regulations which required operators to notify HSE of changes in dangerous substances, does not inherently control the risk of changes. Thus, the claimant’s argument that future risks could be managed did not override the current risk assessment.

4. Discretionary Judgement on Planning Matters

The Inspector’s role in applying planning policy and her discretionary judgment were key, especially when assessing the implications of a proposed development’s proximity to hazardous sites. Her application of the PADHI (Planning Advice for Developments near Hazardous Installations) methodology, endorsed by the HSE, was deemed appropriate, and criticisms aiming at dissecting her reasons were dismissed.

Outcomes

The court dismissed the application for judicial review on all grounds. The Inspector’s application of the relevant circular, assessment of risks based on ‘deemed consent’, and discretionary judgment in terms of attaching weight to various factors were found to be lawful and rational. The judge also rejected claims that insufficient reasons were provided for the decision made. The legal principle that the HSE’s expert risk assessment advising against the proposed development due to safety risks should be given due weight unless there are significant reasons to override them was affirmed.

Conclusion

This case reaffirms important principles in the intersection of planning law and health and safety regulation, particularly around the determination of risk in land use planning near hazardous installations. It upholds the authoritative weight of the HSE’s risk assessments and underscores that interpretation of government circulars must be faithful to the language and intent. The court stressed that in judicial review, its role is not to reassess the planning merits but to ensure the correct legal standards are applied and proper procedures are followed. This strict adherence to policy and risk assessment protocols serves as a guide for future planning inquiries in similar contexts.