Eriden Properties LLP, Re Judicial Review [2007] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2007] CSOH 157

P259/07

OPINION OF LORD CLARKE

in the petition of

ERIDEN PROPERTIES LLP

Petitioners;

for Judicial Review of

The Grant by Falkirk Council on 1^st November 2006 of a Hazardous Substances Consent

________________

Petitioners: Dean of Faculty, Mure; Simpson & Marwick WS

First Respondents: Currie QC; Wright, Johnston & Mackenzie

Second Respondents: Thompson QC, Lake; Dundas & Wilson

11 September 2007

Introduction

[1] In this petition for judicial review the petitioners seek review of a grant, on 1 November 2006, by Falkirk Council (the first respondents) of a hazardous substances consent for premises occupied by KemFine UK Limited (the second respondents) at Grangemouth. The petitioners' interest in the matter is that they own land close to the site of the second respondents' premises and to which the hazardous substances consent relates. The petitioners aver that they wish to develop their land for housing and other uses. As averred by the petitioners in this petition, chemical works have been operated at the site of the second respondents' premises, and on land adjacent to them, since the early part of the 20^th century.

[2 ] In article 5 of the petition, the petitioners aver

"The Site was at one time part of a chemical works operated by ICI and later transferred first to Zeneca (which later became Astra Zeneca) and then in part to Avecia Fine Chemicals Limited ("Avecia"). The Applicant (i.e. the second respondents) took over most of Avecia's premises in about 2005. The Applicant's (second respondent's) premises at the Site now include most of the process and storage plant previously owned by Avecia. A small part of Avecia's former premises, however, is now controlled by FujiFilm, which on 30 March 2006 made its own hazardous substances consent application . . .".

[3 ] The second respondents' premises, and the operations carried out there, are part of large scale operations in the Grangemouth area in the petrochemical sector, which is a source of considerable employment and economic activity, not only for this area itself but in the context of Scotland as a whole. The first respondents are the planning authority for the Grangemouth area. As planning authority they are charged with the responsibility of issuing consents in relation to the presence of hazardous substances on, over or under land in their area.

The statutory framework
[4] The primary legislation concerned is the Planning (Hazardous Substances) (Scotland) Act 1997. Section 2(1) provides as follows:

"Subject to the provisions of this Act, the presence of a hazardous substance on, over or under land requires the consent of the planning authority (in this Act referred to as 'hazardous substances consent')."

Section 5(1) of the 1997 Act goes onto provide as follows:

"Provision may be made by regulations with respect to -

(a) the form and manner in which applications under this Act for hazardous substances consent are to be made,

(b) the particulars which they are to contain and the evidence by which they are to be verified,

(d) the time within which they are to be dealt with."

Section 5(2) then provides as follows:

"Regulations may -

(a) require an applicant for hazardous substances consent or the planning authority or both to give publicity to an application for hazardous substance consent in such manner as may be prescribed;

(b) require the planning authority to conduct appropriate consultations before determining applications for hazardous substances consent;

(i) such a consultation;

(ii) any stage in such a consultation

is to be completed

(d) require the planning authority to determine applications for hazardous substances consent within such time as may be prescribed;

(e) require the planning authority to give prescribed persons or bodies prescribed information about applications for hazardous substances consent including information as to the manner in which such applications have been dealt with".

Section 5(3) then provides:

"In subsection (2) 'appropriate consultations' means consultations with the Health and Safety Executive and with such persons or bodies as may be prescribed".

[5 ] The 1997 Act by section 7(1) provides "Subject to the following provisions of this Act, where an application is made to a planning authority for hazardous substances consent, that authority may -

"(a) grant hazardous substances consent, either unconditionally or subject to such conditions as they think fit, or

(b) refuse hazardous substances consent".

By section 7(2) it is provided as follows:

"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,

(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)".

[6 ] Section 15(1) of the Act is of particular relevance in the present case. It provides as follows:

"A hazardous substances consent is revoked if there is a change in the person in control of part of the land to which it relates unless an application for the continuation of the consent has previously been made to the planning authority."

Section 15(2) then provides:

"Regulations may make provision in relation to applications under subsection (1) corresponding to any provision that may be made by regulations under section 5 or 6 in relation to applications for hazardous substances consent".

[7 ] The relevant subordinate legislation is to be found in The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 SI 1993 No.323. Regulation 3 defines the hazardous substances and controlled quantities thereof with which the regulatory scheme is concerned. Regulations 6 to 14 set out the procedural requirements applicable in respect of applications for and grants of hazardous substances consents providing, inter alia, for neighbour notification (regulation 6) and publication of applications (regulation 7). Regulation 11 provides as follows:

"(1) Except where the consultee has notified the planning authority in writing that it does not wish to be consulted, the authority shall, before determining an application for a hazardous substances consent, consult."

There then follows a list of prescribed consultees including the Health and Safety Executive. Regulation 12(3) provides:

"When a planning authority give notice of a decision on an application for hazardous substances consent the notice shall be in writing and where hazardous substances consent is refused or is granted subject to conditions -

(a) state the reasons for that decision; and

(b) include a statement to the effect that if the applicant is aggrieved by the decision he may appeal to the Secretary of State (Scottish Ministers) under section 33 within 6 months of the date of the notice of the decision."

Regulation 12(4) then provides:

"The planning authority shall, as soon as it is practicable, inform the following persons of the terms of their decision -

(a) the Health and Safety Executive;

(b) the Regional or District Council, where the council is not the planning authority;

(d) every owner who has made representations to them on the application; and

(e) every person holding a notifiable interest in neighbouring land who has made representations to them on the application".

In regulation 15 there is provision for claims to be made for "deemed consents" to which reference will be subsequently made.

[8 ] Circular 5/1993 which is headed Planning Controls for Hazardous Substances

The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 is a circular which was issued by the then Scottish Office. Paragraph 5 of annex A is in the following terms:

"The Health and Safety Executive (HSE) will need to be consulted on every application for hazardous substances consent. They have the expertise to assess the risks 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. Hence, the new provisions inserted in the 1972 Act confer responsibility for determining applications for hazardous substances consent, for vetting claims for deemed consent and for enforcing the new controls, on planning authorities . . . This means that the application for hazardous substances consent will be dealt with by the same council that would deal with any associated planning application, thereby ensuring consistency in handling of linked applications".

Paragraph 25 of annex A of the same circular provides:

"Before determining an application, the planning authority must consult the Health and Safety Executive and the other bodies set out in regulation 11, and they must give those consultees not less than 28 days to comment. With regard to consultations with HSE, authorities should note the advice in paragraphs 12-20 of annex B on HSE's advisory role".

Paragraph 12 of annex B states as follows:

"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. This role is recognised by the requirements in the Procedure Order for HSE to be consulted on proposed developments in the vicinity of hazardous installations and in the 1972 Act for HSE to be consulted on every hazardous substances consent application. HSE's advice may be given either on a case-by-case basis or, for certain more straightforward proposals, through the issue of generic advice."

Paragraph 13 then goes onto state

"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. Where that advice is material to any subsequent appeal, they are prepared to provide expert evidence at any local inquiry."

Paragraph 14 deals with the general principles on which HSE's advice to planning authorities in respect of proposed developments in the vicinity of hazardous installations should be based. Paragraph 15 then provides as follows:

"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 is in the following terms:

"The Secretary of State will continue to exercise the power to call-in planning applications very selectively. In general, applications will only be called-in if they raise planning issues of more than local importance, including safety issues of exceptional concern or other major planning issues. Call-in of hsc applications will be similarly selective. In accordance with this policy, 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".

Paragraph 24 of annex B provides as follows:

"HSE are responsible for notifying planning authorities of the relevant 'consultation zones' around hazardous sites where toxic, highly reactive, explosive or flammable substances are present. In practice, the installations and sites subject to these arrangements will include those for which hazardous substances consent has been granted or is deemed to have been granted . . .".

Paragraph 25 then states:

"HSE will keep the consultations zones under review and will inform the planning authority if changes are appropriate (paragraph 18 refers). Similarly, the planning authority should liaise with HSE if they become aware of changed circumstances which might affect the consultation zone."

Paragraph 6 of annex B states as follows:

"In considering hazardous substances consent applications or planning applications, for development at or in the vicinity of hazardous installations, authorities must have regard to the provisions of the development plan, so far as it is material to the application . . .".

[9 ] A further Scottish Office circular 16/1993 was issued in relation to the regulatory scheme. It is headed "Hazardous Substances Consent: A Guide for Industry". Paragraph 7 states:

"The Health and Safety Executive role in these new controls is to give advice on the nature and severity of the residual risk arising from the presence of a hazardous substance. However, the responsibility for deciding whether the risk is tolerable for the community - and hence whether a particular proposal to store or use a hazardous substance should be allowed - has been given to planning authorities."

Paragraph 6.2 of part 6 of the circular provides:

"Unless a condition is imposed limiting use of the consent to a specified person or company (which would be exceptional) the consent will normally run with the land, rather than being personal to the applicant. This means that if the land is sold in its entirety, the new owner will be able to implement the consent."

Paragraph 6.3 then continues:

"However, where there is a partial change in control of the land to which a consent relates (e.g. part of the land is sold, but not all of it) that consent is revoked unless an application for its continuation has previously been made."

Paragraph 6.12 provides:

"Where a site benefits from a hazardous substances consent, the Health and Safety Executive will set a 'consultation distance' within which the planning authority will consult HSE for advice on proposals for certain types of development."

[10 ] There was lodged by the petitioners a document headed "HSE's Current Approach to Land Use Planning (LUP)". This is apparently an in-house document generated by HSE but which is in the public domain. Paragraph 2 of the document seeks to define HSE's role, in particular in relation to hazardous substances consent applications in the following terms:

"HSE's specific in LUP is twofold:

(i) Under the PHS Regulations, the presence of hazardous chemicals above specified threshold quantities requires consent from the Hazardous Substances Authority (HSA), which is usually also the local planning authority (PA). HSE is a statutory consultee on all hazardous substances consent applications. Its role is to consider the hazards and risks which would be presented by the hazardous substance(s) to people in the vicinity, and on the basis of this to advise the HSA whether or not consent should be granted. In advising on consent, HSE may specify conditions that should be imposed by the HSA, over and above compliance with statutory health and safety requirements, to limit risk to the public (e.g. limiting which substances can be stored on site, or requiring tanker delivery rather than on-site storage). HSAs should notify HSE of the outcome of all applications for consent and where consent has been granted should supply copies of the site plans and conditions.

(ii) HSE uses the information contained in consent applications to establish a consultation distance (CD) around the installation. This usually comprises three zones or risk contour areas - see paragraph 4. The CD is based on the maximum quantity of hazardous substance(s) that the site is entitled to have under its consent. HSE notifies the LPAs of all CDs in their areas. The General Development Procedure Order requires the LPA to consult HSE about certain proposed developments (essentially those that would result in an increase in population) within any CD. HSE advises the LPA on the nature and severity of the risks presented by the installation to people in the surrounding area so that those risks are given due weight by the LPA when making its decision. Taking account of the risk, HSE will advise against the proposed development or simply note that it does not advise against it. This advice balances the ACMH principle of stabilising and not increasing the numbers at risk, with a pragmatic awareness of the limited land available for development in the UK".

Paragraph 3 then provides:

"It is important to note that HSE's role in the land use planning system is advisory. It has no power to refuse consent or a planning application. It is the responsibility of the HSA or LPA to make the decision, weighing local needs and benefits and other planning considerations alongside HSE advice, in which case they should give HSE advance notice of that intention. 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 our advice. However HSE has the option, if it believes for example that the risks are sufficiently high, to request the decision is 'called in' for consideration by the Secretary of State, in England and Wales (a very rare situation). In Scotland, if the planning authority is minded to grant permission they have to notify the Scottish Ministers who can decide to call-in the application".

This document then goes onto describe how the consultation distances and risk contours are employed by the HSE. Reference was also made by the petitioners to EU directive 96/82/EC and the Planning (Control of Major-Accident Hazards) (Scotland) Regulations 2000 which, it was said, sought to implement the provisions of the directive. The petitioners informed the court that that legislation was designed to deal with the problem of major accident hazards arising from, inter alia, dangerous substances. They were referred to by way of background to show the emergence and development of high standards of safety that were now required to be observed in relation to such matters. The provisions, had, however, no direct bearing in relation to the present dispute.

Factual background
[11] It is a matter of agreement that the site in respect of which the consent was granted, which is subject to attack in the present proceedings, benefited until 2005 from a deemed consent in respect of a claim made for such consent in terms of regulation 15 of the 1993 regulations. The ownership in the site had subsequently changed to that of the second respondents and because of a failure to make an application timeously for a continuation of the existing consent in terms of section 15 of the 1997 Act, the existing consent was revoked by virtue of the provisions of that Act. An application for consent was made on behalf of the second respondents to the first respondents on 13 February 2006 (6/3 of process). It was subsequently withdrawn and a fresh application was made on 22 May 2006 (6/2 of process). A covering letter sent by the second respondents to the first respondents with that last application stated inter alia as follows:

"Please find enclosed an original and an additional two copies of our Express Consent application, there being a fourth copy for public consultation currently at your offices, along with a copy of the notice that appeared in the Falkirk Herald. This application covers materials which have been stored on the KemFine UK Ltd site for many years and which were included in previous consents covering the site. These consents were held under Zeneca Plc and Avecia Fine Chemicals Ltd or (sic) consent is now required due to a change in hazard classification through the Chemicals Handling Information and Packaging (CHIP) regulations.

This new Express Consent application is being submitted to resolve what KemFine UK Ltd believes is a technical issue and replaces the Express Consent application lodged with you earlier this year which we now withdraw. This application, along with the conditions which are appended, should enable a reduction in the Consultation Distance for the site from 2.75km to approximately 2.0km".

[12 ] On 6 June 2006, the petitioners, having been notified of the second respondents' application for consent, sent written representations to the first respondents' Chief Executive (6/1 of process). On 22 June 2006, Mr Malcolm Smith, development control co-ordinator of the first respondents, wrote to the second respondents in the following terms:

"I refer to the above application for express consent related to the storage of hazardous materials, as registered by this Authority on 22 May 2006. I also refer to previous applications and to recent correspondence and discussions related to the continuing operation of the KemFine plant.

As you are aware, consideration is presently being given by the Health and Safety Executive in respect of the relevant consultation distances which should be applied in respect of the KemFine operation. In accordance with our earlier discussions, I understand that both the Council and the company accept that this should provide opportunities to both reduce this consultation distance and provide associated benefits in terms of health and safety considerations, and also related to the potential for other development within the local area.

In order that the most appropriate solution can be achieved from this process, I would be grateful if you could confirm whether the range and quantities of hazardous substances outlined within your most recent application relate to those presently stored and required for ongoing business operations or whether these are in fact in excess of what is required and could be refined to a lower level.

I appreciate this may not be a simple request at this stage, but I would be grateful if you could give this your full consideration following/during which I would be please to meet representatives of KemFine in order to discuss matters further" (6/12 of process).

[13 ] On 26 June 2006, Mr Smith wrote to HSE in relation to the second respondents' application. That letter was in, inter alia, the following terms:

"In terms of the extant application by KemFine, this in effect reflects the earlier withdrawn application but merely corrects some potential inaccuracies related to existing consents held on this site. On this basis I assume that the consultation zones for this application are likely to reflect those amended in respect of the earlier application but clearly we await your confirmation on this matter in due course" (6/13 of process).

[14 ] On 11 July 2006, the second respondents wrote to Mr Smith in reply to his letter of 22 June 2006. They did so in the following terms:

"We are in receipt of your letter of 22 June 2006, and can confirm that the detail in our most recent application in respect of hazardous substance consent resulted from a thorough review of our requirements to maintain our business operations and safeguard the 300 jobs at KemFine.

The review built on work undertaken by our consultant, ABB, with extensive reference to HSE, to establish measures which could be applied to maximise the reduction in the consultation distance without excessive risk to our ongoing business. This, we believe, we have achieved by a combination of naming substances, limiting container sizes and overall inventories and specifying storage areas.

ABB calculated that the application of the restrictions proposed could result in a reduction in the CD from 2.7km to 1.6km but using the same data set, HSE estimated that the resulting CD would be reduced only to 1.9km. Further work established that the difference was due to how the respective ABB and HSE models used wind and weather conditions. While HSE acknowledged that the ABB model might technically be more accurate for the bi-polar weather conditions experienced in this area, the HSE model was used throughout the UK and was considered fit for purpose.

Therefore given that it is HSE who determine the official CD, we could not reasonably expect a result of less than 1.9km. In the event, the CD resulting from our most recent application, has been confirmed by HSE to be 1.985km or thereabouts, which although slightly higher expected, may be within experimental error. Nonetheless, we have arranged a meeting with HSE later this month to review their assumptions and establish if there are any areas which can usefully be addressed further.

We will keep you advised of any developments" (6/14 of process).

[15 ] Mr Smith wrote again to the Health and Safety Executive on 20 September 2006. In that letter the status of the second respondents' previously submitted application for consent was discussed. The letter then continued:

"The revised proposals will also allow both a degree of reduction in the amounts of material stored within the site (as compared with the previous consents) and a clearer indication of where/how these are stored (thereby providing more relevant Consultation Zones).

As part of the on-going dialogue with the HSE the issue of Consultation Zones and their impact on potential development remains an important consideration in addition to general health and safety issues. Revised Consultation Zones had been issued in draft in respect of the now withdrawn application . . . and therefore they presently have no status. We understand that it is likely that was (sic) HSC granted in this case that a similar alteration to the zones should result. The Council remains keen to reduce these zones as far as practicable in association with KemFine and the HSE in order to both improve safety within the Grangemouth area and also to facilitate further development in the general interests of the wider Falkirk Council area.

Therefore, in conclusion, while it appears to the council that KemFine is presently operating without the required HSCs, there is little doubt that the nature of the use and the extent of storage in onsite operations are well established and represent an important part of the local 'chemical' economy. Steps have been taken to reduce the levels of hazardous materials stored within the site and discussions related to the extent of and further reductions to Consultation Zones remain ongoing for reasons already outlined" (6/8 of process).

[16 ] On 28 September 2006, Mr Jeffrey Cook, HM Principal Inspector of Health and Safety, wrote on behalf of HSE to the first respondents a letter for the attention of Mr Smith. That letter is 6/9 of process. The contents of that letter and their meaning and effect were the subject of considerable debate before me to which I will return. Having referred to the second respondents' application, the letter stated as follows:

"The Health and Safety Executive (HSE) has assessed the risks to the surrounding areas from the likely activities resulting from the granting of the proposed Hazardous Substances Consent.

Only the risk from hazardous substances for which consent is being sought have been assessed, together with the risks from substances in vehicles that are being loaded or unloaded. Risks which may arise from the presence of other substances have not been taken into account in this assessment. Generic categories of hazardous substances have been assessed by reference to exemplar substances, which have been selected to represent the worst-case substances allowed by this consent.

On the basis of this assessment, HSE have 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.

The following comments are provided for clarification.

HSE notes the contents of your letter dated 20 September 2006, in particular:

· KemFine's view that the situation has arisen largely as a result of an administrative oversight, a view which the Council does not dispute.

· That there is little doubt that the nature and extent of storage and on-site operations are well established.

· That the latest application by KemFine, made on the advice of the Council, is an attempt to resolve the anomaly of operating without the required consents.

· That this application result in much smaller LUP zones than those which arose from Avercia's consent entitlement.

It is a matter for the Council to clarify the legal position of KemFine's previous applications. Taking the above factors into account may lead you to conclude that there is a net benefit in land use planning terms in granting the current application.

If Consent is granted, following Central advice that particulars in the application on Form 1 do not automatically become conditions of consent, it would be beneficial to include a condition such as:

'The Hazardous substances shall not be kept or used other than in accordance with the application particulars provided in the Hazardous Substances Consent Application Form, nor outside the areas marked for storage of the substances on the plan which formed part of the application'.

You are also asked to note the following assumptions that HSE has made in its assessment, on the advice of the applicant:

Table A of this application records 'spontaneously flammable' substances as part and entry number B4 in the 2000 Regulations and 'highly flammable' substances as B5. B4 and B5 in the Regulations refer to 'explosive' substances. HSE has assumed that the entries in Table A for: 'spontaneously flammable Part B4 should be 'highly flammable' Part B7, and 'highly flammable' Part B5 should be 'highly flammable liquids' Part B8.

On the above basis, and assuming that Consent is granted, HSE has devised a Consultation Zone for this establishment. The Consultation Zone is the outer of the three zones delineated on the attached map and constitutes a notifiable area for HSE consultation purposes. The other two zones are for use in providing land use planning advice.

If consent is granted, please send a copy of all the consent documents to this office so that our records can be updated and future land-use planning advice given on the correct basis".

[17 ] On 11 October 2006 the petitioners wrote to the first respondents' Chief Executive a letter which is 6/17 of process. That letter was replied to by the first respondents' Chief Executive on 30 October in a letter (6/19 of process) addressed to the petitioners' solicitors and which was in the following terms:

"Thank you for your letter of 11 October 2006.

In terms of considering and determining the current application for Hazardous Substances Consent . . . submitted by KemFine UK Ltd, section 7(2) of the Planning (Hazardous Substances) (Scotland) Act 1997 requires that the planning authority shall have regard to any material considerations and in particular:"

The letter then set out material considerations provided for in section 7(2). The letter then continued:

"Falkirk Council's Regulatory Committee will, of course, have regard to all material considerations affecting the application before it is determined. Whilst the Council notes HSE's position that, were there to be a new notifiable hazardous installation, it would advise against the granting of consent, the fact remains that this is not a new installation but is in fact a well-established one. That is a material consideration which the Council requires to take into account, along with all other material considerations, in considering the application. I do not consider that further enquiries of HSE are necessary in light of their consultation response of 28 September 2006.

In addition to the material considerations set out in the 1997 Act, Falkirk Council will have regard to any representations received with respect to the Hazardous Substances Consent application. I have not treated your letter of 11 October 2006 as a representation . . . as you have not requested me to do so. Please indicate by return whether you wish your letter to be treated as a letter of representation to the application. It is intended that the application for consent be considered by the Regulatory Committee on 1 November 2006."

[18 ] On 31 October 2006 the petitioners' agents wrote to the first respondents' Chief Executive a letter (6/20 of process) in which inter alia they criticised in certain respects the content of a copy of a report for the hearing of the Regulatory Committee with which they had been supplied. They also urged the first respondents not to determine the application at its meeting on 1 November but to consider the matter further "in order to assess what measures might materially reduce the risks to public safety and the consultation zones which would be recommended by the HSE for other applications following on approval".

[19 ] In the event, the first respondents' Regulatory Committee determined the application at its meeting on 1 November 2006 and granted the application. They had before them the report (6/5 of process) from the first respondents' Director of Development Services which is dated 24 October 2006. After setting out the description of the proposal and the site location and the history of hazardous substances applications which had been made in respect of the site, the report went on to set out the bodies who had been consulted, none of whom had objected to the application being granted. The only objection submitted on behalf of a neighbouring land interest came from the petitioners. As regards the position of HSE the report stated as follows at Paragraph 3.3:

"The Health and Safety Executive (HSE) has advised that its assessment has been undertaken assuming the 'worst case substances allowed by this consent'. On the basis of this assessment, HSE has concluded that there are substantial risks to the surrounding population arising from the proposed operations and if this was a new notifiable installation it would advise against granting Hazardous Substances Consent. Through correspondence from the Council HSE is aware that

(a) while the nature of the chemical use within the site has remained largely unchanged, the Hazardous Substances Consents previously held may have been affected by changes in control of parts of the site and therefore, primarily for what appears an administrative oversight, the existing consents may in fact be revoked,

(b) that the nature and the extent of storage and on-site operations are well established,

(d) that approval of the application would result in Consultation Zones smaller than that associated with the former Avecia consents.

HSE conclude that, 'it is a matter for the Council to clarify the legal position of KemFine's previous applications. Taking the above factors into account this may lead you (the Council) to conclude that there is a net benefit in land use planning terms in granting the current application'. Accompanying HSE's response is a map defining the extent of the revised Consultation Zones. This reduces the outer zone from approximately 3km to 2km and also adjusts the extent of the inner and middle zones. HSE has advised on the wording of a condition to be attached to the Hazardous Substances consent, is (sic) granted. The map is appended to this report for information".

[20 ] The petitioners' position was summarised in the report at Paragraph 5.2 in the following terms:

"The objector considers that KemFine does not presently have consent for its current operations and therefore in terms of Falkirk Structure Plan policy ECON 8 and adopted Local Plan policy there is a presumption against the development as it would add to the number of people at risk within the local area. Granting consent in this case would in fact add to the number of local residents who will live and work within a major hazard consultation area and therefore at risk in the event of an incident occurring. The present situation provides the opportunity to the Council to create a safer environment for Grangemouth and its residents by imposing restrictions on the site operations. Supporting the representation is a report from a specialist consultant containing a number of suggestions of how associated risk could be reduced. This includes: limiting the volume of inventories stored on site; restricting the category of material inventories; reduction in the size of individual storage vessels; and storage within buildings".

[21 ] In the detailed appraisal section of the report, it was noted at paragraph 6a.1 as follows:

"KemFine is an established chemical site/operation of long standing. It is noted that as a result of changes in control of parts of the site and in light of administrative timescales that the status of a number of existing consents remains in question and it is likely that the company are presently operating in the absence of valid consents. In essence, when the company acquired the site in September 2005, applications for continuance of consent were submitted. However, these were submitted after acquisition and therefore the part change of control of the site. It is likely that continuance applications were not required for all of the extant consents, however, it is likely main consent . . . was affected and therefore revoked by operation of statute. While this did not change the nature of the operation on site it is likely that it left KemFine without Hazardous Substances Consent for the fundamental part of its business."

[22 ] At paragraph 6a.2 of the report the following was stated:

"As previously indicated, Falkirk Council has, in conjunction with site operators, sought to address the nature/extent of materials being stored within chemical sites in Grangemouth in order to improve safety and also to allow other beneficial development to take place within the Falkirk/Grangemouth area. Against this background there is a realisation of the importance of the chemical industry to the local, regional and Scottish economy which requires to be balanced with the welfare of residents in the local area. In KemFine's case, an assessment of inventories/storage arrangements etc bearing in mind the continued operational requirements of the company, has occurred (similar to the process considered appropriate by the objector's consultant) with the current proposal arising from this. This has resulted in positive feedback from the Health and Safety Executive including a reduction in the Consultation Zones".

[23 ] The report then continues at paragraph 6a.3 as follows:

"Therefore, while there are issues related to the consent regime for the existing operation it is clear that the nature of the use has not changed to any material extent. Granting consent would reduce the former Consultation Zones and therefore improve assumed safety issues within the local area. The consent would therefore sustain the present use of the long established site in an appropriate manner."

[24 ] At paragraph 6d.1 the report refers to policy ECON 8 of the Falkirk Council Structure Plan which is to the following effect:

"proposals for new petrochemicals and chemicals development will be supported within Grangemouth . . . subject to environmental and health and safety considerations and provided that they are compatible with the regeneration of Grangemouth Docks, Town Centre or Bo'ness Town Centre".

[25 ] The report then at 6d.2 continues:

"The proposal would support the established chemical industry in Grangemouth to the extent that it would maintain the status quo while allowing the business (KemFine) to adapt to commercial changes in the future. This would be done in a manner designed to reduce risk to the surrounding area as compared with previous consents and recognises that despite the absence of extant consent for the substantive KemFine operation, the use is an established part of the fabric of the area. In essence, it is considered that its wider impact would be less than that related to the previous consents and on this basis and in light of the general support for the chemical industry, the safety and associated concerns would be within acceptable levels. This position is consistent with that of the Health and Safety Executive. Accordingly, it is considered that the proposal would accord with Policy ECON 8 of the Falkirk Council Structure Plan".

[26 ] Under the heading "Health and Safety Executive Advice" it is stated, at paragraph 6e.1 of the report as follows:

"The formal advice of the HSE is outlined within paragraph 3.3 above and does not support a refusal of consent on safety grounds in this case. It is accepted that the circumstances surrounding this application are distinct but the installation has been in operation for many years and the nature of the operation as now proposed would clearly be beneficial when compared with previous consents".

[27 ] At paragraph 6f of the report the writer set out what are described as the "material considerations" which require to be taken into account.

[28 ] The report then concludes as follows at paragraph 7.1:

"The existing use of the KemFine site is both longstanding and fully established. Against this background it is likely that the company are presently operating in the absence of all of the necessary consents required and that this application is the appropriate means to consider/address this matter. Consideration has been given by the company related to the nature/extent of its operation and to the means by which it can limit potential impact on the surrounding area. This is to some degree evidenced by the reduction in the Consultation Zones which would follow approval in this case".

[29 ] The recommendation therefore was in the following terms:

"Accordingly, it is considered that the extent of the operation now proposed is both proportionate and acceptable in the particular circumstances and that approval of consent would accord with the requirements of section 7(2) of the Planning (Hazardous Substances) (Scotland) Act 1997 as outlined by the assessment above."

That recommendation was accepted by the first respondents' committee and the consent to which the present proceedings relate was granted.

The Petitioners' case

[30 ] The petitioners' attack on this grant, as advanced by junior counsel for them, in essence involved a complaint by them that standing the terms of the HSE letter 6/5 of process, the first respondents should not have granted the application without further consultation and inquiry as to how the risks emerging from the operation of this site might be further reduced with a consequent reduction in the Consultation Zones. That position turned largely on an argument that the terms of the letter from HSE were to be read as advice by HSE against the grant of the application. The court's attention was drawn to a planning application by Asda to the first respondents where the HSE had advised against the grant of consent because of risk to the public and further assessment of the risks had, thereafter, been carried out. Compare 6/23 and 6/24 of process. I was also invited, on behalf of the petitioners, to have regard to a letter from HSE which is 6/21 of process, dated 30 November 2006 and which is addressed to the petitioners' agents. That letter, of course, post-dates the grant of the application. In it Mr Cook of HSE wrote, inter alia, as follows:

"As a statutory consultee, HSE's role is to advise the Council on the potential safety risks arising from the consent application presented to us. HSE's advice to Falkirk Council on KemFine's most recent application concluded that there would be substantial risks to the surrounding population if the application were granted, and illustrated this by provision of a map showing the extent of the risk zones around the site. HSE considers that its advice to Falkirk Council was clearly stated but that it is for the Council to decide as to whether these risks are tolerable in the context of existing and potential uses of neighbouring land.

I would refer you to The Scottish Executive Environmental Department Circular 5/93 Planning Controls for Hazardous Substances, The Town and Country Planning (Hazardous Substances) Regulations 1993. This document makes it clear that HSE has an advisory role only and have no power to direct refusal. It also advises councils that they should not override HSE advice without most careful consideration. Granting of hazardous substances consent is entirely a matter for Falkirk Council taking into account all representations made on the application before them.

HSE also considers that it is for the Council to decide whether additional conditions should be imposed on the granting of the application. HSE is not a consultant, either to the Council or the applicant, and is unable to assess the range of options that may be considered as ways to reduce the extent of HSE's proposed consultation zone (CZ). However, by considering the assessment carried out to determine this CZ, HSE is able to identify possible options to reduce the extent of the CZ and would be willing to outline these options for the Council and the applicant. HSE has recently made such an offer to the Council and awaits the Council's response. This process has been carried out with respect to previous consultations amending hazardous substances consent in order to reduce the overall consultation zone from 2.75km to the current CZ".

I was invited to take from this letter that, had the first respondents gone back to HSE, after receiving the advice contained in 6/5 of process, and before granting the application, it might have been possible that through further discussion and the obtaining of advice from HSE, the consultation zones could have been further reduced. The petitioners did accept that, as a result of the discussions among the first and second respondents, and the HSE, the zones had been reduced from what had obtained under the terms of previous consents applying to the site but it was said that the changes were slight.

[31 ] A further complaint was made on behalf of the petitioners that while certain parts of the development plan were expressly referred to in the report to the first respondents' committee, other relevant sections were not - reference was made to section 7(2) of the 1997 Act. For example, it was said that there was no reference, in the report, to paragraph 2.2.5 of the Grangemouth Local Plan 1989 which is to the following effect:

"The presence of modern hazardous industry in close proximity to modern houses, shops and schools indicates that, at least for the foreseeable future industry and housing will have to co-exist in Grangemouth. This should not be taken to mean that the existing situation is entirely satisfactory nor that there is no scope for some improvement in the longer term future. The strategy should recognise the facts of the existing situation but not entirely rule out longer term incremental improvements" (6/27 of process).

[32 ] Nor was there any reference to the Falkirk Council Local Plan (Finalised Draft) March 2005, pages 61 and 62 (6/34 of process). The passages which are particularly relied upon are to the following effect:

"5.30 The chemical companies in Grangemouth are of major economic importance in both a Scottish and local context. The opportunity to build on their presence in the town, particularly with the local downstream manufacture of their primary products is a key goal of both the economic development strategies of Scottish Enterprise Forth Valley and the Council.

5.31 However, as mentioned above, the chemical companies also create a local constraint. Significant areas of Falkirk Council area are therefore already constrained in terms of possible development options. To increase offsite restrictions still further would not be acceptable. There will therefore be a presumption against any proposal that will extend the size and extent of hazard consultation zones within urban areas beyond their present coverage or prejudice the development of sites allocated in the Local Plan.

5.32 In addition, Falkirk Council will seek to work with the chemical companies to continue to improve their safety and environmental performance. Wherever possible the Council will seek to negotiate reductions in the inventories of hazard substances held by chemical companies in order to reduce the offsite development constraints in the Falkirk Council area. Falkirk Council will produce its own guidance setting out how it will determine applications for Hazardous Substances Consent".

The statements contained in those policies, it was submitted, reiterated further the need for further consultation and negotiation with the second respondents by the first respondents before the consent was granted.

[33 ] While junior counsel for the petitioners recognised that the actual history of the operations at the site was a relevant consideration for the first respondents to take into account, he nevertheless contended that the first respondents had ignored, to some extent, their own policies designed to reduce the impact of such developments. The background or context was a requirement to tighten up the control of such sites. Reference in this connection was made to 6/29 of process which is an environmental report of February 2007, published by the first respondents and relating to the final draft of the Local Plan, particularly at page 93 thereof. Reference was also made to paragraph 5.32 of the final draft of the Local Plan. These policies had not, it was submitted, been directly placed before the first respondents' committee. These policies pointed to the need for more "meaningful" consultation with the second respondents as applicant and the HSE than had occurred in this case.

First Respondents' reply
[34 ] In opening his submissions, senior counsel for the first respondents invited the court to sustain the first respondents' pleas in law and to refuse the prayer of the petition. It was clear, he said, that no one was suggesting that the second respondent should never be given the appropriate grant. The real complaint of the petitioners was that the process could have resulted in reduced Consultation Zones to remove the impediment to the commercial development of the petitioners' site. Properly analysed, the petitioners' complaint, when one has regard to the respective roles of the HSE, and the first respondents, was a criticism of HSE, that it did not invite other conditions to reduce, further, the Consultation Zones. When the correspondence, lodged by the petitioners, which has been referred to above was fully considered it was clear that the first respondents did engage in consultation with HSE and the second respondents with a view to reducing the zones. Not only did the first respondents engage in detailed discussion about the matter, but they had full regard to the advice of HSE and had imposed in the grant of consent the very conditions required by HSE.

[35 ] It was important for the court to have regard to both the factual and legal context in which the first respondents reached their decision. In the first place the history of the operation of the site was important. The application was not in relation to a new installation but one which had been operated for many years. It had long been part of the petrochemical industry, forming part of the local and Scottish economy. Policy ECON 8 of the structure plan, 6/26 of process, was directed at proposals for new petrochemical operations. In considering an application of the kind with which the present case was concerned, the first respondents had not only questions of safety to take into account, they also had to take into account the economic importance of continuing operations - that factor had to be balanced against the safety of the inhabitants of their area.

[36 ] The elected representatives and officers of the first respondents had grappled with such issues for years. Since about 2003 there had been discussions with the second respondents regarding the Consultation Zones. There had been no objectors, apart from the petitioners, to the application. Their interest was a pecuniary one. They wanted to be able to develop their land. There was no general perception that if consent were to be granted, the first respondents would have failed to balance, properly, the conflicting interests.

[38 ] The first respondents' officials, on receipt of that letter from HSE, treated it as advice given by the HSE in its consultative role, and they were perfectly entitled to read it, having regard to its terms taken as a whole, as not amounting to advice being given against the granting of consent. It was a relevant consideration for the first respondents, as planning authority, in dealing with the application that it related to an existing and well established installation. The court should disregard the terms of the letter written by the HSE officer after the decision was taken in respect of the application (6/21 of process). What was stated in the second paragraph of that letter however should be noted. It did not indicate a view being put forward by the HSE that in granting the consent, when they did, the first respondents had acted in any respect irregularly. The HSE had never raised previously with the first respondents any question of resources limitations affecting their ability to carry out their functions under the relevant legislation.

[39 ] Senior counsel for the first respondents then turned to address specifically what was set out in the written petition itself. In doing so he observed that junior counsel for the petitioners had not sought to make submissions in support of the case made in article 19(1)(ii). In article 18 of the petition, the petitioners referred to the fact that "clarification", which was said to have been given by HSE, by the writer of the report to the committee, was clarification of matters reflecting the first respondents' own letter to HSE. The petition avers, therefore, that "the "clarification" "was therefore an immaterial consideration". This, senior counsel for the first respondents submitted, involved a misconception on the part of the petitioners. The matters of "clarification" were matters which the first respondents were entitled to have regard to anyway and were relevant to their decision. As regards the more general complaint in article 18, paragraph 3.3 of the report was not misleading but put in clear terms the substance of the advice of HSE as to risk. Reference was also made to paragraph 6(e)(1) of the report. There was no basis for thinking that the members of the first respondents' committee in considering the application were misled as to the true state of affairs.

[40 ] Turning to deal with what is averred in article 18(ii) of the petition, namely that the report and notes referred to the proposed consent causing a reduction in the Consultation Zones for the site in circumstances where no Consultation Zones existed, senior counsel for the first respondents referred to paragraph 3.3 of the report which he said, made the position perfectly clear and there was no misunderstanding as to the true position on the part of the writer of the report and, in turn, the committee. Reference was also made to paragraph 6(3)(a) of the report.

[41 ] Turning then to article 18(iii) of the petition which complains about a failure to mention in the report certain parts of the Development Plan, the Falkirk Council Structure Plan, the Grangemouth Local Plan, the Finalised Falkirk Council Local Plan, The Falkirk Local Plan, Strategic Environment Assessment, Environmental Report, senior counsel for the first respondents pointed out that some of these matters were addressed to new proposals for development. In any event, the report made it perfectly clear that the issue for the first respondents was to balance questions of risk as against questions of economic benefit. The first respondents had also worked with the second respondents in the instant case to improve the position regarding Consultation Zones.

[42 ] Article 18(iii)(b) refers to a statement in chapter 5 of the Falkirk Council Structure Plan which is to the following effect, that a key objective of the Structure Plan with regard to environmental quality "seek to integrate care for the environment with economic and social development of the area, ensuring that key environmental impacts are identified and mitigation measures are adopted where appropriate". Senior counsel for the first respondents observed that in relation to this, the petitioners simply failed to aver what, if anything, the first respondents could or should have done in relation to environment matters which were not addressed by them. In the next subparagraph of article 18 of the petition reference was made to paragraph 2.2(5) of the Grangemouth Local Plan which pointed to the need to have a strategy which would not entirely rule out incremental improvements in relation to existing installations which were in close proximity to houses, shops and schools. The petitioners complained that this part of the Local Plan was not referred to specifically in the report. In addition the Finalised Falkirk Council Local Plan Strategic Environmental Assessment, Environmental Report was said to note that hazardous substances Consultation Zones were constraining public population increases, housing developments and community regeneration. These factors, it was averred "are material considerations which should have been brought to the attention of the regulatory committee". While senior counsel accepted that there was no express reference to these particular statements in the report to the committee, he submitted that, having regard to the whole circumstances, it was clear that the first respondents had been engaged in an approach to the application which had involved them seeking an increased reduction in the Consultation Zones.

[43 ] Paragraph 19(1) makes a reference to legitimate expectations which was not a point further pursued by the petitioners before the court. The subparagraph however does allege that the first respondents ought to have engaged in a process of identifying along with the HSE possible options to reduce the extent of the Consultation Zones as referred to in HSE's letter of 23 November 2006. The answer to that point, however, senior counsel for the first respondents submitted, was that HSE in providing their statutory advice previously had not suggested to the first respondents that further consultation was appropriate or would be productive. There was simply no requirement on the first respondents to press matters further, notwithstanding the content of the HSE advice, and the discussions and negotiations that had been carried out up until that time.

Second Respondents' reply
[44 ] In opening his submissions for the second respondents, junior counsel invited the court to sustain their three pleas in law and to repel the first plea in law for the petitioners and to dismiss the petition. Counsel sought to lodge a further inventory of productions for the second respondents 7/2 to 7/5 of process, which motion was not opposed and I granted it. Junior counsel advised the court that he adopted, on behalf of the second respondents, the submissions made on behalf of the first respondents.

[45 ] He then sought to explain some of the background to the application for consent which the present proceedings relate. The business operated at the site was sold to the second respondents on 19 October 2005. The existing consents ran with the land. The statutory framework, however, provided that on a change of ownership an application had to made within a specific time for a deemed consent otherwise the existing consent would be revoked. The second respondents had been unable to apply for deemed consent within the prescribed time because of stock exchange rules prohibiting the publication of the proposed sale of the business. There was some discussion between representatives of the first respondents and representatives of the second respondents as to how to deal with the position which resulted in the lodging of an application for consent, which was subsequently withdrawn on the view that there were existing consents. That position however was subsequently considered to be incorrect and the present application was lodged on 22 May 2006.

[46 ] Junior counsel went on to describe the operations carried out at the site, advising the court that the business was at the specialised end of the chemical and pharmaceutical industry. It was said that the second respondents' operations were of "strategic importance in the UK chemical industry". Junior counsel then sought to set out a further history of negotiations which had taken place among the second respondents' predecessors as owners and operators of the site, the HSE and the first respondents in particular in relation to the extent of the Consultation Zones. None of this is a matter of admission by the petitioners and the Dean of Faculty sought to reserve his position as to whether the court should pay any attention to it in reaching its decision.

[47 ] Junior counsel then turned to address some aspects of the legislative framework and the relevant planning policies. He pointed to what he described as the interaction between planning consent and hazardous substances consent. In the present case it was important, he submitted, to keep in mind that the site was operating, at the time the application for consent was made, and that there existed planning permission for the operations which were carried out at the site. Circular 5/1993 at paragraph 52 expressly contemplated such a situation and provided as follows:

"The situation may arise where, before commencement of the new consent requirements, planning permission has been granted for a development implicitly involving the storage or use of hazardous substances. After consideration by HSE and the planning authority of the off-site risks; where a contract has been let or development commenced, on that basis; but where deemed hazardous substances consent is not available as the substances concerned have not been present during the establishment period. In this situation, which may have led to considerable investment in a site, planning authorities would be expected to give sympathetic consideration to any application for hazardous substances consent subsequently made which is in line with the terms of the planning application and permission. Consent should not normally be withheld unless there are compelling reasons for such a decision, involving a significant change in the material circumstances".

Junior counsel for the second respondents accepted that the decision whether or not to grant to grant a hazardous substances consent was, in essence, a planning decision. In that connection the approach to be taken by the decision maker was as discussed in the City of Edinburgh Council v Secretary of State 1998 SC (HL) 32 where the issue was the role of development plans, having regard to the provisions of section 18A of the Town and Country Planning (Scotland) Act 1972. While the House of Lords accepted that the statutory provisions meant that the development plan was presumed to govern planning decisions, unless there were material considerations which indicated that in the particular case the provisions of the plan should not be followed, nevertheless, the matter was always one of judgment and a judgment to be exercised by the decision maker. As Lord Clyde at page 44C to D put matters

". . . it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision maker. It is for him to assess the relative weight to be given to all the material considerations".

In the present case, it was submitted, it was entirely within the legitimate exercise of the discretion of the first respondents, as the decision maker, to decide whether or not to revert to HSE further, after receiving their letter 6/9 of process or to proceed simply to consider the application and to grant it. For the petitioners to succeed in the present case, it would be necessary, it was submitted, for them to persuade the court that no reasonable authority would have issued the consent without going back to HSE for further advice, in particular as to whether the Consultation Zones might be reduced.

[48 ] Turning to the specific grounds of challenge of the first respondents' decision as these were set out in the petition itself, junior counsel for the second respondents adopted the submissions of senior counsel for the first respondents with regard to the way in which the letter of HSE 6/9 of process should be interpreted. It did not amount to advice by the HSE that the grant of consent should be refused. The position in the present case, could be contrasted with what had occurred in relation to the proposed creation of an Asda store where, in 6/24 of process, the report to the committee in that case recorded that the HSE had advised against the proposal in question. Again, junior counsel for the second respondents adopted what had been said in relation to the petitioners' case on behalf of the first respondents as regards the allegations of failure by the first respondents to take into account material considerations. In particular the first respondents had before them the relevant policies and the development plan.

[49 ] In conclusion junior counsel for the second respondents submitted that a balance had to be struck in any such case between questions of safety and commercial development. That balancing exercise involved a matter of planning judgment for the first respondents to arrive at. It was for them to determine how the balance should be struck. There was no obligation on the first respondents, once they had received the advice of the HSE 6/9 of process, to go back to the HSE and seek further advice or information. Nothing in the relevant development plan or other planning materials required them to do that. The petitioners had failed to establish any basis for arguing that no reasonable authority would have failed to revert to the HSE to seek further advice or to continue consultation before the consent was granted.

Petitioner's Response
[50] In reply the Dean of Faculty for the petitioners indicated that while the additional history of matters referred to by junior counsel for the second respondents might not necessarily be disputed by the petitioners, the petitioners' case was that it was irrelevant. What was relevant was what was placed before the first respondents committee when they were considering their decision. If the court were minded to go into the additional history, beyond the documents lodged prior to the commencement of the hearing and the averments of the petitioners, a second hearing might be required and then questions of expenses might arise.

[51 ] Turning to his own substantive submissions, the Dean of Faculty said that while he did not necessarily object to the characterisation of his clients' interest as being primarily the removal of the blighting of their land for development purposes, he would maintain that that was a perfectly legitimate interest for his clients to pursue. In any event the existence and extent of Consultation Zones were reflective of risks which resulted from the storage of hazardous substances at the second respondents' site. A lesser Consultation Zone was consistent with a lesser risk. Minimisation of risk was not only in his clients' interest, but in the public interest and was in pursuance of the relevant planning policies. The Dean of Faculty suggested that, to some extent, the respondents' submissions, as well as the report to the first respondents' committee, overestimated the importance of the fact that there had been a plant in existence and operating for some years at the site. The fact of the matter was that the previous consents were revoked and that the new application brought about an opportunity for the first respondents to carry out a new assessment as to the merits of a hazardous substances consent in relation to the second respondents' site, having regard to the provisions of the 1997 legislation and relevant policy considerations. The Dean of Faculty wished to make it clear that he was not suggesting that the second respondents' application must, by necessity, fall to be refused but what he did submit was that the opportunity should have been taken to limit the categories of substances and quantities thereof permitted to be on the second respondents' site and thus to limit further the risk and therefore the Consultation Zones. This argument and the charge against the first respondents was that they had too readily accepted what the second respondents had said were their requirements without making more enquiry than they did with either the petitioners or HSE or others. Given the modern approach to hazardous substances consents, the speech of Lord Hope in The City of Edinburgh Council v Secretary of State for Scotland at page 35 supported the proposition that the first respondents should have reached their decision in the light of current guidance and thinking. While the Dean of Faculty indicated that he accepted that the first respondents had considerable experience of dealing with many such applications, it was not correct to assume that the decision had been arrived at or justified by some factors existing in the background. The complaint was about the decision making process in this case. In that respect the Dean of Faculty put forward six propositions:

1. The first respondents must have properly understood the legal basis for their decision for it to be valid.

2. They must have fulfilled their statutory duties to obtain and take into account advice from HSE.

3. The first respondents must have understood that advice and applied it properly in the decision that they were taking.

4. The first respondents must have acted in accordance with the relevant policies in applying that advice.

5. They must have properly taken into account other material which was relevant to their decision, particularly provisions of the development plan.

6. Finally, the first respondents must have reached a decision which was not unreasonable "in the legal sense".

[52 ] In relation to the first of these propositions the position adopted by the Dean of Faculty was that it could not, with confidence, be said that the first respondents had fully recognised that they were dealing with a fresh application and that there was no existing Consultation Zones. Reference was made to paragraph 3.3, paragraph 6b.1, 6b.8 and 7.7 of the report, 6/5 of process.

[53 ] As regards the second proposition reference was made to section 5(2)(b) and 7(2)(e) of the 1995 Act. Contrary to what senior counsel for the first respondents appeared to suggest, conditions could be imposed by the first respondents and were not the sole prerogative of HSE.

[54 ] Turning to his third proposition, the Dean of Faculty made reference to 6/9 of process for the quantities referred to therein, which made it clear that HSE had made their assessment on the basis of the "worst case" and with regard to generic categories. Their reference to "substantial risk" meant that no reasonable planning authority, faced with those factors, would have failed to address further enquiries regarding the extent of the risk and how it might be addressed. The application should in reality have been treated as being a new application and the HSE advice read in that light.

[55 ] The Dean of Faculty invited the court to approach matters on the basis that the HSE's letter 6/9 of process was in effect giving advice to refuse consent, if, as it should have been regarded, this was a new application for a new consent. The statement in paragraph 6e.1 in the report 6/5 of process to the effect that the "formal advice of the HSE . . . does not support a refusal of consent on safety grounds in this case" was a clear misunderstanding of the advice given by HSE. The matter could be tested in this way, the Dean of Faculty suggested, - had the first respondents refused the application, standing the HSE advice, that decision could not have been impeached. The Dean of Faculty then submitted that if he was correct in arguing that the court should read 6/9 of process as amounting to advice by the HSE to refuse the consent then, in that situation, the first respondents should have had regard to paragraph 130 of annex B of circular 5/1993 which was to the following effect:

"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. Where that advice is material to any subsequent appeal, they are prepared to provide expert advice at any local inquiry".

The first respondents should, it was submitted, have required further explanation of HSE's reasons for their advice. Paragraph 15 of annex B of the circular should also have been followed and the first respondents should have given advance notice of their intention that they were minded to grant Hazardous Substances Consent against HSE's advice and to advise HSE that they had 21 days to give further consideration to the matter. That procedure had not been followed in the present case.

[56 ] Even if the construction placed on 6/9 of process by the petitioners was held not to be correct, it did contain substantive advice which required a reasonable authority, in the context of the relevant provisions of the development plan, to revert to HSE for further elaboration of their reasoning and further advice from them before reaching the decision to grant.

[57 ] In seeking to elaborate on his fifth proposition, the Dean of Faculty submitted that the court had to be satisfied that the first respondents had taken into account all of the relevant factors, in particular what is said at paragraph 5.31 and 5.32 of policies EP18 and 19. There is nothing in the report, 6/5 of process, which demonstrated that the first respondents had taken the initiative to see if Consultation Zones might be reduced by, for example, a reduction in the second respondents' inventories of substances. What had occurred in relation to the Asda development proposal, referred to in 6/24 of process, showed the type of further consideration that should have been given to matters in the present case. The first respondents had simply been content to rely on what the second respondents had to say regarding their requirements. The question was one of assessment of risk and it was for the first respondents to attempt to reduce or mitigate that risk. The HSE, as the risk is reduced, would as a consequence produce smaller Consultation Zones.

[58 ] The Dean of Faculty's last proposition namely that the first respondents, if the consent was to stand, must have taken a decision in relation thereto which was not unreasonable "in the legal sense" was then reformulated in the following way "no reasonable authority would have issued the consent without reverting to HSE for further advice". In a situation, like the present where (a) the planning authority has an opportunity to take steps to minimise the risk to public safety and thus reduce the Consultation Zones which would be both in the public interest generally and in accordance with the provisions of the development plan and (b) where there was an assessment of risk from the HSE which was described as substantial, then no reasonable authority, it was submitted, would have failed to take steps to attempt to reduce the risk further, for example, by seeking further advice from HSE and taking other steps to test the applicant's own assessment of the matter. Once again, it was said that the petitioners were not suggesting that the consent should have been refused. What they were saying was it should not have been granted before such further steps had been taken. The court should reduce the existing consent and leave it open to the first respondents to reconsider the matter.

The Respondents' Concluding Submissions
[59 ] In reply, senior counsel for the first respondents reminded the court of the correspondence lodged by the petitioners themselves, 6/13, 6/14, 12/1, 12/2, 6/8 and 6/16 of process. The Dean of Faculty, it was said, had simply failed to address the content and significance of that correspondence as forming part of the consultation process carried out by the first respondents before reaching their decision to grant. That correspondence demonstrated that there had been a tripartite discussion among the first and second respondents and the HSE designed to reduce the Consultation Zones. It was clear that all these parties were working to that end. There were direct discussions between the second respondents and the HSE. It was simply untrue to suggest that the first respondents had simply adopted what the second respondents told them. The petitioners' objections had been recorded at paragraph 5.2 of the report 6/5 of process. The HSE letter was before the committee. At paragraph 7.1 of the report 6/5 of process it was recorded that

"consideration has been given by the company relating to the nature/extent of its operation and to the means by which it can limit potential impact on the surrounding areas. This is, to some degree, evidenced by the reduction in the Consultation Zones which would follow approval in this case".

What was being pointed out, it was submitted, was that HSE had been involved in bringing about a reduction of the Consultation Zones. The history of the matter as demonstrated by the petitioners' own productions and the HSE advice to them, that did not say that further work could be carried out or needed to be carried out to reduce the Consultation Zones, entitled the first respondents to assume that there was no room for reducing the zones further, otherwise HSE would have said so. The members of the first respondents' committee knew from the petitioners' objection that the petitioners' position was that the inventories could be reduced. There was no requirement, in that set of circumstances, for the first respondents to go back to HSE before taking their decision.

[60 ] Senior counsel for the first respondents then addressed the point made by the petitioners that the description at paragraph 6e.1 of the report (6/5 of process) of the HSE advice was inaccurate or misleading by saying that it had to be read in the context of what was said at paragraph 3.3 of the report where the substance of the advice was set out verbatim. The committee were fully aware that the HSE considered that the second respondents' operations did involve substantial risks. But the role of the committee was to balance the fact of risk together with the economic benefit of the second respondents' operations. The committee were very well aware of the serious safety implications at the site but the responsibility as to whether a grant of consent should be made lay with them, and them alone, and their decision in that regard had to be taken in the light of two conflicting considerations. There was nothing to suggest that in carrying out the balancing exercise involved, the first respondents had misdirected themselves.

[61 ] Senior counsel for the second respondents adopted the submissions both of his junior and those made on behalf of the first respondents. It was simply untenable, he argued, to suggest that the HSE letter 6/9 of process amounted to advice against this consent. The application was not, in substance, in respect of a new installation. This was a most unusual situation. The application related to an existing, large installation. What was new was the need to make a new application in relation to it. The policies in the development plan referred to by the petitioners were largely directed at new developments and not existing developments.

[62 ] Senior counsel for the second respondents submitted that the HSE letter, 6/9 of process, did not provide advice either for or against the grant of the consent in this case. Only if they had given advice against the grant would paragraph 15 of circular 5/1993 come into play. It was clear, having regard to the requirement of annex B to the aforementioned circular that HSE were properly consulted in the present case. The first respondents had imposed in the grant conditions recommended by HSE in their letter. In that situation there certainly was no requirement on the first respondents to revert to HSE and to seek further information or advice. As well as advising on risk, HSE in their letter drew attention to a number of factors including the fact that the Consultation Zones were smaller than had existed under the previous consents applying to the site. While some of the matters referred to in the HSE's letter emanated from the first respondents' own communications on the matter with HSE, the HSE did not disagree with these matters and in effect they were adopted by HSE.

[63 ] Senior counsel then addressed the content of the report to the first respondents' committee, 6/5 of process. This, he submitted, did not reveal any failure to understand the true position relating to the site. All relevant and material considerations had been taken into account. The petition should be refused.

Decision
[64] As I have noted the petitioners' position in this case throughout was not that the consent should not have been granted. Their position was that it ought not to have been granted until the first respondents had discussed further with HSE, the petitioners and second respondents the possibility of further measures being taken by the second respondents at the site which might have reduced the Consultation Zones further. They were, of course, unable to demonstrate that had any such further discussion taken place that would have resulted in agreement by the second respondents about reductions in their inventories, or that any such reductions would have allowed them to carry out their existing operations in a commercially acceptable fashion. But, in any event, matters have to be tested at the time when the first respondents arrived at their decision to grant consent. The fact that the site had operated, as an important part of the petrochemical industry situated in the first respondents' area, for some years, under previous consents, was, in my judgment, clearly a highly relevant consideration in deciding whether or not to grant consent. HSE, themselves, in my judgment, in the formulation of their advice in 6/9 of process recognised this. This was not a new installation. Different considerations might have applied in relation to a new installation but the application in the present case applied to a successfully established operation for which there was planning permission and 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. Notwithstanding these important features of the situation with which the first respondents were dealing, I agree with the submissions made on behalf of the first respondents, that, having regard to the correspondence passing among the parties, and lodged by the petitioners themselves, it is abundantly clear that, contrary to what was submitted on behalf of the petitioners, prior to granting consent in this case, the opportunity had been taken by the first respondents to seek to have the Consultation Zones reduced and that this attempt bore some fruit.

[65 ] I agree also with the submissions on behalf of both sets of respondents that the construction which the petitioners sought to place on the HSE letter 6/9 of process as amounting to advice by HSE to refuse consent flies in the face of what is written therein. The letter recognises, in my view, the legitimate distinction, which I have drawn between a new application in relation to a new installation, and an application in respect of an existing and well established installation, in respect of which consents had previously been granted. There is nothing in the HSE letter, in my judgment, which could have given the first respondents any idea that HSE thought it either necessary or desirable that consent should not be granted unless until further discussions took place with them and other interested parties. I am entirely satisfied that, given their existing knowledge of the existing installation, and the correspondence they did enter into in relation to the application, the first respondents carried out consultation which was both in accordance with their statutory requirements and was adequate to allow them to reach a decision on the application.

[66 ] I should say that I was not at all impressed by the petitioners' reliance on the letter from HSE dated 22 November 2006 which might be read to suggest that further conditions might have been imposed which might, in turn, have resulted in the Consultation Zones being reduced. That letter appeared some time after the decision was taken and not a hint of what was said in it is contained in 6/9 of process. The present petition was served on HSE, who have not entered the proceedings. The grant of consent was intimated to them and they have raised no objection to it or questioned anything in relation to it. The first respondents, in my judgment, were well entitled to proceed on the basis that, in reaching their decision, the HSE position was as set out in 6/9 of process and that that position did not involve HSE advising against consent or proposing further possible conditions that might be imposed after further discussion.

[67 ] I am satisfied, in the foregoing circumstances, that the first respondents carried out their statutory functions in respect of their consideration of the application for consent. Moreover I can detect from the correspondence and the report to the committee, 6/5 of process, no failure on their part to take into account all relevant considerations or that they have been guilty of taking into account any irrelevant considerations. As counsel for the petitioners accepted, these particular respondents are particularly experienced in dealing with applications of this sort given the concentration of the type of industry involved in their area. They are the decision maker in relation to these consents and as the various circulars referred to acknowledge, 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 judgment, that in the instant case, the first respondents in carrying out that balancing exercise in arriving at the decision they did, they did so on a reasoned and reasonable basis, giving particular regard to the history of the second respondents' site. It is clear also, in my judgment, that the committee were fully advised and fully aware of the relevant planning policies which fell to be applied in relation to an existing installation. (I should, for the avoidance of any doubt in the matter, make it clear that in referring to history I am not including the matters referred by junior counsel for the second respondents about which the learned Dean of Faculty reserved his position. I have not found it necessary to have any regard to that material in reaching my decision).

[68 ] There was nothing in the situation, in my judgment, as it existed, at the time at which the first respondents reached their decision, that required them to carry out further discussion or consultation. It cannot be said, on the basis of the material before me, that no reasonable authority would have granted consent without further discussion and inquiry. I shall, accordingly, sustain the first respondents' first and third pleas in law, the second respondents' first and third pleas in law and refuse the prayer of the petition.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Eriden Properties LLP, Re Judicial Review [2007] ScotCS CSOH_157 (11 September 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_157.html Cite as: [2007] CSOH 157, [2007] ScotCS CSOH_157

Scottish Court of Session Decisions