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Alighting on serious risks

Wayne Beglan and Sam Fowles examine the Planning Court's recent judgment in an important judicial review concerning the correct approach of planning decision-makers in the context of sites presenting serious health and safety risks.

In (1) Valero Logistic UK Ltd (2) Greenergy Terminals Ltd v Plymouth City Council [2021] EWHC 1792 (Admin) Mrs Justice Thornton held that the Council had taken sufficient account of the risks posed and accordingly, the Court was not entitled to revisit the planning merits of the Council's decision. This case is a further demonstration of the need to avoid an overly prescriptive, legalistic, and hypercritical approach to risk assessment in Planning Committee discussions and Planning Officer reports.

The Defendant local planning authority, Plymouth City Council, granted planning permission for a development comprising a change of use from a private helipad to commercial heliport at a site in Plymouth. The Claimants operated distilled fuel storage depots some 125 metres away from the helipad. They sought to challenge the grant of planning permission in light of the potentially catastrophic consequences of a helicopter crashing onto highly flammable fuel. The fuel depots were "establishments" regulated under the Control of Major Accident Hazard Regulations 2015 ("COMAH sites") due to the serious risks to human health and the environment presented by the products handled and stored there.

The Interested Party, Halo Aviation Ltd, applied for planning permission on 20 May 2020. The application envisaged two or three commercial helicopter passenger landings per week, subject to evening and weekend limitations. Part of the proposed flight path involved helicopters flying over the bow of vessels discharging fuel. The Interested Party therefore submitted an agreement between it and the statutory harbour authority, as well as a specimen permission from the Civil Aviation Authority permitting landing and taking off for helicopters in a congested area.

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The Planning Officer sent the Interested Party's risk assessment and the proposed flight paths to the Civil Aviation Authority and sought its views. The Planning Officer, in recommending the grant of planning permission subject to planning conditions, observed that the proposal provided "tangible betterment, ensuring flights are carried out in a structured and considerate way by an operator who is fully accountable to the Civil Aviation Authority". Following a meeting of the Planning Committee, planning permission was granted subject to 23 conditions, including the establishment of a direct line of communication between the heliport and the neighbouring COMAH sites to increase awareness of aircraft activity. Limitation on the number of flight paths and landings per year were also imposed.

The Claimants argued that:

  1. The Council failed to consider the risks posed by the proximity of the development to COMAH sites because the officer and planning committee relied on the aviation regulation scheme (and Civil Aviation Authority as the regulatory body) to ensure that the proposed heliport was operated safely.
  2. The Council misconstrued the "fallback position" as "unrestricted and unregulated" helicopter flights from the site (under private ancillary use and/or permitted development) because the existing helipad fell within the curtilage of the existing building thereby taking it outside the General Permitted Development Order 2015 (Sch. 2, Pt. 4, Para. b).
  3. It was irrational for the Council to rely on other regulatory regimes when granting permission. In particular, given the proposed aerodrome would be "unlicensed", the CAA would have insufficient power to regulate the risks.
  4. The proposed development was not in accordance with the development plan and no other material consideration justified granting permission.
  5. The decision was irrational.

Mrs Justice Thornton found:

On Ground 1: It was clear that the Planning Officer and Committee Members recognised that the risks to the COMAH sites from a helicopter crash were a principal issue in their consideration of the planning application. Both the officer's report and committee meeting shows consideration of the regulatory scheme, the CAA's role, the flight paths, and types and class of helicopter. It is well-established that the reports of Planning Officers must not be subject to "hypercritical analysis" and it was noted that the Planning Committee "are not specialist risk assessors".

On Ground 2: Thornton J declined to allow this argument on the basis that the point had been raised at a comparatively late stage of the judicial proceedings, and that it was at any rate a speculative submission: the most which could be said was that the helipad "seems" to be within the curtilage of a building.

On Ground 3: The Claimant was correct to say that the CAA could not regulate the proposed development as a licensed aerodrome under the Air Navigation Order 2016. The proposed development was, however, in a "congested area". This brought it within the CAA's regulatory ambit under Regulation 5 of the Rules of the Air Regulations 2015. The Council was, therefore, entitled to rely on the CAA and the relevant regulatory scheme to ensure that the proposed aerodrome remained safe in relation to the COMAH sites.

Grounds 4 and 5 were essentially parasitic on the first three grounds.

Mrs Justice Thornton accordingly dismissed the claim.

This case provides important guidance for both lawyers and local authorities. It identifies the standard to which local planning authorities must conform when making decisions about development that is covered by other regulatory schemes and the approach that should be taken to development in the vicinity of COMAH sites.

Wayne Beglan and Sam Fowles acted on behalf of the successful local planning authority. Philip Coppel QC and Olivia Davies acted on behalf of the Claimants. All are barristers at Cornerstone Barristers.

This article represents the perspective of the Defendants. The claimants reserve their right to appeal.

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