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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Valero Logistics UK Ltd & Anor v Plymouth City Council [2021] EWHC 1792 (Admin) (30 June 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/1792.html Cite as: [2021] EWHC 1792 (Admin) |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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| (1) VALERO LOGISTICS UK LIMITED (2) GREENERGY TERMINALS LIMITED |
Claimants |
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- and – |
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| PLYMOUTH CITY COUNCIL |
Defendant |
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-and- |
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| (1) HALO AVIATION LIMITED (2) LOUIS DULLING |
Interested Party |
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Mr Wayne Beglan and Mr Sam Fowles (instructed by Plymouth City Council) for the Defendant
Hearing date: 19 May 2021
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Crown Copyright ©
The Hon. Mrs Justice Thornton:
Introduction
Ground 1 – the Defendant failed to consider a material consideration by not considering the risks posed by the development to the COMAH sites.
Ground 2 – the Defendant misunderstood the "fallback" position and, by relying on that misunderstanding, it skewed the process by which it made the decision.
Ground 3 – the Defendant acted irrationally by relying on the existence of other regulatory regimes in deciding to grant permission.
Ground 4 – the Defendant erred in law by granting permission to an application that conflicted with the development plan when no other material considerations justified such a decision.
Ground 5 – the decision was irrational.
The Facts
"…the proposal provides 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. This should give adjacent site operators greater [sic] and perhaps reduce the risk to their operations and onsite emergency plans when compared against an unregulated and unrestricted domestic use which can operate in an ad-hoc way.
Whilst health and safety is covered by separate legislation, having a regulated facility rather than a domestic facility surely safeguards the surrounding operators, providing comfort that modern fleet and professional pilots are operating to the highest safety standards."
"Change of use from private helipad to commercial heliport, including demolition of existing private hangarage building and erection of new commercial hangarage building and associated works."
"The development hereby approved shall not be brought into first use until the applicant (Halo Aviation) establishes a direct line of communication with the neighbouring COMAH sites in order to increase awareness of aircraft activity at the site. The applicant will attend the Cattedown Emergency Planning Forum meetings for the first 12 months of operation and as requested thereafter by Plymouth City Council's COMAH officer or successor in title.
Reasons In the interests of promoting health and safety around the application site and promoting the safe flying conditions and avoid conflict with Policies DEV1, DEV2, and DEV20 of the Plymouth and South West Devon Joint Local Plan 2014-2034 (2019) and the National Planning Policy Framework 2019."
a. limiting the flight paths to two, which will be mainly over water,
b. restrictions on flights in the evenings, weekends and bank holidays,
c. a maximum of 160 commercial helicopter landings at the site per year, save in emergency,
d. all commercial helicopter landings to be operated in accordance with Plymouth City Heliport & Cattewater Harbour - Deconfliction Agreement, dated 15 June 2020.
Legal framework
Aviation
COMAH Sites
"Every operator must take all measures necessary to prevent major accidents and to limit their consequences for human health and the environment." (Regulation 5(1))
"An operator or local authority which has prepared an internal emergency plan or external emergency plan must take reasonable steps to ensure that it is put into effect without delay if-
(a) a major accident occurs; or
(b) an uncontrolled event occurs which by its nature could reasonably be expected to lead to a major accident." (Regulation 16)
"Local authorities have an interest in the prevention of major accidents and mitigation of their consequences and can have an important role to play."
"containing and controlling incidents so as to minimise the consequences, and to limit the damage to human health, the environment and property." (Regulations 11(1)(a), 13(1), 14(1) and 16)
Planning decision making and judicial review
PLY20: "Plymouth's waterfront will be renewed, enhanced and maintained as Plymouth's showcase and as a unique, sustainable and vibrant asset that drives the city's economic, cultural, social and environmental wellbeing…. By…. [u]sing development and technological solutions through the planning process in order to minimise the risk of hazardous installations at Cattedown port…"
DEV1: "Development proposals will be required to safeguard the health and the amenity of local communities";
DEV2: "Development proposals which will cause unacceptable on- or off-site risk or harm to human health, the natural environment or living conditions, either individually or cumulatively, will not be permitted";
DEV29: "Development will be required to contribute positively to the achievement of a high quality, effective and safe transport system in the Plan Area".
Planning Officer's Reports
a. The reports are not to be read with undue rigour, but with reasonable benevolence. In considering the level of detail it must be borne in mind that they are written for councillors with local and background knowledge. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail (Sullivan J in R v Mendip DC ex parte Fabre [2017] PTSR 1112, at 1120B).
b. Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave.
c. The question for the Court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice that was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
d. Where the line is drawn between an officer's advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it (R (Mansell) v. Tonbridge and Malling Borough Council [2017] EWCA Civ 1314]).
Fallback
"27. The status of a fallback development as a material consideration in a planning decision is not a novel concept. It is very familiar. Three things can be said about it:
(1) Here, as in other aspects of the law of planning, the court must resist a prescriptive or formulaic approach, and must keep in mind the scope for a lawful exercise of planning judgment by a decision-maker.
(2) The relevant law as to a "real prospect" of a fallback development being implemented….. in this context a "real" prospect is the antithesis of one that is "merely theoretical": para 20. The basic principle is that "for a prospect to be a real prospect, it does not have to be probable or likely: a possibility will suffice"… "fall back" cases tend to be very fact-specific"… The role of planning judgment is vital. …..:
"[it] is important … not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge's response to the facts of the case before the court."
(3) Therefore, when the court is considering whether a decision-maker has properly identified a "real prospect" of a fallback development being carried out should planning permission for the proposed development be refused, there is no rule of law that, in every case, the "real prospect" will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the GPDO. In some cases that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker's planning judgment in the particular circumstances of the case in hand."
Reliance on other regulatory regimes
"This decision is not carte blanche for applications for planning permission to seek to ignore the pollution implications of their proposed development and say "leave it all to the EPA", This decision simply recognises that whilst environmental pollution is a material consideration, so too is the system of authorisation under the EPA. So that in appropriate cases the planning authority or the Secretary of State may decide that they are satisfied that any remaining pollution concerns are capable of being dealt with by the EPA. It is for them to decide which cases are appropriate and which are not." Gateshead MBC v Secretary of State (1994) 67 P & CR 179
"[13] Unless the Secretary of State in a case such as this formed the view that excessive pollution could not be controlled from the development, it was appropriate to leave the matter to the regulator. Thus it would only be if, in a given case, either the material put before the Secretary of state was insufficient so that he could not form a proper view as to whether there was indeed the possibility of excessive emissions which could not be controlled, or he was persuaded that that indeed was the position, it would be appropriate to refuse planning permission. If the situation in any given case was that it appeared to him that the necessary controls could achieve the desired result, then it would be entirely appropriate for him to decide that he could grant the necessary consent… and leave to the regulator the control of the emissions."
R (on the application of Bailey & others) v Secretary of State for Business, Enterprise & Regulatory Reform [2008] EWHC 1257 (Admin).
Grounds of challenge
Ground 1 – The Defendant failed to consider a material consideration by not considering the risks posed by the development to the COMAH sites
Submissions
Discussion
The Interested Party's risk assessment
"5. Risks from the operation. Risks associated with operating helicopters commercially are mitigated in the following ways;
a. How the helicopter is operated
b. Who is operating the helicopter
c. What type and class of helicopter
d. Where the helicopter is flown
6. How. Since all commercial flights to and from the site must be flown by operators who hold both an AOC and a Congested Area Permission; they must be flown in accordance with Performance Class 1 flight profiles. This ensures that at all stages of flight, in the event of a single engine failure the helicopter is able to perform either a safe forced landing at the landing site or a diversion to a suitable landing area, using the remaining engine's power.
7. Whom. All commercial flights must be flown by pilots who hold as a minimum Commercial Pilot's Licence. In order to gain this, pilot's must have completed at least 150 hours of flying training and at least 350 hours of theoretical knowledge training, with an Approved Training Organisation (ATO). Pilots must then complete 13 CAA exams before pass a skills test flight with a CAA examiner, in order to demonstrate all procedures and manoeuvres can be carried out competently on the relevant aircraft category 3.
8. Each different make and model of aircraft requires a further approved course of training to ensure they are familiar with the specific operating limitations and safety procedures before they are licensed to fly that aircraft commercially.
9. Commercial pilots must also pass further Operators' Performance Checks (OPCs) with CAA approved Type Rating Instructors every 6 months to ensure they can still achieve the required standards of safe flying on a regular basis and has to complete a variety of annual training courses covering such subjects as Human Factors, First Aid and Firefighting.
10. What. All commercial helicopter flights operated to and from the Heliport will be twin engine aircraft, the manufacturers of which must design them in accordance with exacting certification specifications published by the Environmental Aviation Safety Agency (EASA). These Certification Specifications (CS) cover every design aspect from maximum weights of passengers, vibration limits, fuselage structural fatigue limitations, down to "Each removable bolt, screw, nut, pin or other fastener"4 . They also include significant requirements for redundancy in terms of hydraulics, flight controls, fuel and electrical systems. Furthermore, all critical parts have specific limits on their risk of failure; a. Critical Parts – A critical part is a part, the failure of which could have a catastrophic effect on the rotorcraft, and for which critical characteristics have been identified which must be controlled to ensure the required level of integrity. b. The failure of a critical part must be shown to be extremely improbable. This is defined as being less than 1 x 10-9 chance of occurring per flight, i.e. a 1 in a billion chance.
11. To ensure continued airworthiness of these aircraft, manufacturers must also publish appropriate maintenance procedures and service intervals to be followed. All engineering must be carried out by a CAA-approved maintenance organisation.
12. Where. Precise flight path routings to and from the site will be promulgated to all users and strictly enforced. These can be seen at Annexe A and will also highlight to pilots the key areas to avoid. Therefore, even in the 1 in a billion event of a catastrophic failure, the aircraft's flight path will be laterally separated from all of the hazardous neighbouring sites and residential areas."
The Planning Officer's report
"HSE's advice will not involve any consideration of the potential risks which the activities at the heliport may present to the major hazard sites. The HSE advises that this is a matter for the Council, the operators of the heliport and the major hazard sites to consider, concluding that if planning permission for the heliport is granted, it may be necessary for the operators of the major hazard sites to review their safety reports under the Control of Major Accident Hazard (COMAH) Regulations 2015."
"19. The application site is located in Cattedown, approximately 1.5km south east of the city centre and is characterised as being one of Plymouths principal industrial areas. The site is surrounded by a number of COMAH sites and these are identified on drawing '110 P1 - Helicopter Landing Site Approach Flight Paths'.
20. A COMAH site is one that stores a sufficient quantity of dangerous substances to fall into the definition of an 'Upper Tier' or 'Lower Tier' site. Upper Tier establishments will hold greater quantities of dangerous substances meaning that additional requirements are placed on them by the Regulations. There are 48 named dangerous substances which include, but are not limited to, flammable liquids, gasses and aerosols, explosives, oxidising liquids and solids.
21. The duties relevant to all sites are as follows:
- Notification Hazardous Substances Consent (HSC)
- Major Accident Prevention Policy (MAPP)
- All measures necessary
22. Duties relevant to 'Upper Tier' sites include:
- Prepare a COMAH safety report
- Prepare and test an on-site emergency plan
-Supply information to local authorities for off-site emergency planning purposes
- Provide certain information to the public
23. There are a number of 'Upper Tier' or 'Lower Tier' sites in close proximity to the application site as follows with approximate distances and orientation:
- Transco – 380m to the north
- Greenergy – 100m to the southwest, 100m to the west and 200m to the north
- Valero – 400m to the east
- Origin fertilisers – 400m to the east
-Above ground fuel lines – 100m to the west; 100m to the south; and between 200 and 380m to the east - Below ground fuel – 150m to the south east
24. In addition to these sites, plan 110 P1 also identifies a 'Fuel Bundle and Filling Point', referred to by the Cattewater Harbour Commissioners as the 'Cattedown West tanker box'. This is located at Cattedown Wharves and is used by tankers/vessels to unload fuels to the various storage facilities identified above."
"25. The flight paths have been modified from the pre-application submission, reducing from three paths to two. Comparatively these significantly reduce the proximity to flying between the COMAH sites with the approach/take-of routes almost exclusively over water to minimise impact. However, and given the location of the application site it would be virtually impossible to avoid flying over one of the identified sites.
26. The Westerly Path initially heads west from the site immediately flying over the South West Coast Path and part of the Greenergy site before entering the Cattewater. The path then turns southwest over Mt Batten Breakwater and into the sound then turning south to avoid Drakes Island.
27. The Easterly Path initially heads south flying over an underground pipeline and adjacent to the Cattedown West tanker box. Once over the Cattewater the path heads in an easterly direction over Laira Bridge and across the Plym Estuary."
"28. Paragraph 45 of the NPPF states that "local planning authorities should consult the appropriate bodies when considering applications for the siting of, or changes to, major hazard sites, installations or pipelines, or for development around them. As already noted, the Health and Safety Executive (HSE) have been consulted and the advice to the Local Planning authority is that the HSE does not advise against the development in this location.
29. Officers note that had the HSE's advice been 'advise against' then the principle of the development would have been unacceptable. However, and based on the advice above it is therefore necessary to consider the existing use of the site and the proposed used to determine if the risks of the proposed development are substantial when considered against the Development Plan and the NPPF."
"30. The Cattewater Harbour Commissioners (CHC) are the Statutory Harbour Authority for the Cattewater Plymouth and were consulted as the flight path will be over their water. Whilst the CHC note that military aircraft also use the river as an approach to the Citadel on an infrequent basis the proposed flight path transits in front of 'Cattedown West tanker box', highlighting that the tanker box extends to the west from the edge of the west wall. This would mean that with a vessel sat on the berth the proposed flight path would flying over the bow/deck of a discharging tanker (80m overhang).
31. Officers understand that there is an average of 6-12 ships discharging at the jetty per month, with the duration of a discharge being approximately 24 hours (Greenery LOR). This means that there will be times where there is no conflict when the berth is vacant, unlike some of the other surrounding COMAH sites which have been avoided which are static and pose a hazard continually.
32. Notwithstanding, the CHC highlighted that there could be instances where the arrival of a Helicopter coincided with the Pilotage of a vessel which could cause safety concerns. The reason for this is that as a helicopter conducts its final descents and approaches, this is also the most critical point of a pilotage, where the vessel is manoeuvring to/from its berth.
33. The CHC advise that large vessels are tidally constrained so flexibility from the vessels schedule isn't often available therefore a form of communication prior should be established so no conflict exists between the two safety critical evolutions, a matter raised by representations from adjacent site operators. In response to the comments made that applicant has produced a 'Deconfliction' agreement which the CHC has confirmed is acceptable. This sets up a line of communication between the applicant and the CHC to prevent unnecessary conflict between incoming helicopter flights and vessels."
The Planning Committee discussion
"As the application proposes two dedicated flight paths. Two are required to make sure the heliport remains operation safe during different weather circumstances. The flight paths are the pink paths. You can see we have an east north path and a west southerly path. The application size located within the Cattedown industrial area and is surrounded by lower and upper COMAH sites as set out in the report. These are identified with the different colours. I have attached a key there which we can go through if members wish. As the landing area is set back from the foreshore, helicopters will need to traverse some of these COMAH sites, either on arrival or take off however, as you can see both flight paths are almost exclusively overwater to reduce impact and to enhance safety. This was supported by the Civil Aviation Authority when we discussed this with them.
The applicant has provided a risk assessment which will need to be submitted to the Civil Aviation Authority for approval to obtain the necessary permissions to land in this area which is classed as a congested area. The risk assessment takes account of the surrounding land uses and landmarks and has adopted a twin engine aircraft policy which results in much safer operations. Officers note that historical flights were operated by single engine aircraft which will no longer be permitted on the applicants risk assessment should permission be granted for safety concerns."
"The area we're talking about today, actually really is very high risk. You've got very nearby, what you saw on pictures just now petroleum tanks. All around the area you've got, if you drive around which we did quite a few times, you see a lot of the pipes go through the area which contain, gas, fuel, all sorts go through there. It is a potential time bomb which could happen.
…. given the location of this application, it'd be virtually impossible to avoid flying over one of the identified in brackets highest risk sites, namely 'blast zone'. Present operators in the area have to work under what's called a COMAH which is a Controlled Major Accident Hazards Regulations 2015. Has this been taken into consideration? Quite clearly it seems to be that it hasn't."
"The health and safety HSE recognises a major accident at the site could prove fatal with environmental impacts felt not just in this community but potentially abroad also… The committee might be surprised to hear that it is amongst these hazardous sites that the applicant wants to construct a commercial heliport with flight paths drawn over at least one of the hazardous sites and a shared jetty)… Simply put, the consequences of a helicopter related crash or other incident around the application site could be catastrophic and entirely outside of Valero's control. It would however be something the Council would have a statutory responsibility to both plan for and respond to under COMAH. The Buncefield explosion still looms large in public consciousness. It's understandable that so many local residents have expressed concern in making this decision today, the committee must answer to them."
"Firstly, safety, ultimately what we're trying to do is aim to professionalise flying operations up at Victoria house, commercial aviation, quite rightly second only to the nuclear industry in terms of regulatory safety oversight as commercial helicopter pilots we take our responsibilities incredibly seriously. We've had a stated policy of engagement with the CAA throughout, who have no concerns over our ability to operate safely to the site. On top of this already stringent legislation we've also self-imposed specs sheets), and to further address these concerns. Firstly, as stated all commercial helicopter flights will be restricted to twin engine aircraft, able to operate to the highest safety class. Performance class one, which actually guarantees a safe landing at any stage of the flight in the event of engine failure. And secondly, we've also seen tightly regulated those flight paths approach and departure routes to further reduce any exposure to the neighbouring site and reduce noise to a minimum."
"MC: Thank you very much Chair. My question is actually about the siting of the heliport and the flight path. Councillor Rennie's points in his reference to the explosions that we saw recently. There was a huge tragedy and it made a big impact on me. The fact that the avionic regulators are regulating the internal safety standards of the airport and then the conduction of the helicopters, any fall from one of these helicopters, any pilot error that could cause a crash, without regard to engine failure, there's many things that can cause a crash, could be catastrophic. When you're looking at odds and probabilities you're rolling the dice. And even if it's one in a million chance, if you have over 360 flights, you're rolling that dice 360 times. So, I'd like to hear a little bit more about the safety assessment. The risk assessment of the location of the proposed site."
"Perhaps I'll just share my screen again to get the useful site plan up front. If we just go around the site. The site is here highlighted in red is Valero's fuel storage and highlighted in green here is Greenergy. These are the two upper tier sites. Where you have the little green dashes here, they actually reflect fuel tankers that may be waiting to collect fuel before going off on deliveries. In terms of the risk assessment, the applicant is required to undertake a risk assessment of their operations and have this approved by the Civil Aviation Authority before they are given the permission or the necessary licences to operate out of this site. Just to give members some sort of comfort, if, planning permission was granted, they would still need to secure additional certification, based on their risk assessments that the Civil Aviation Authority have to approve. I think Jonathan touched on that in his presentation and it's set out in the report. In terms of our statutory obligation as a planning authority we are required to consult the Health and Safety Executive, which we have done, and that is set out in the National Planning Policy Framework. The advice provided by the HSE, is that they do not advise against this development, i.e., It's not that they don't object and it's not that they don't support. They are saying, they do not advise against this development taking place. The Civil Protection Unit of the Council have been consulted. Their remit is not to provide a formal opinion, support or object to an application. I've just set out the statute obligation which is to maintain the on and off site risk management of our particular site, that being Cattedown, Millbay and Devonport Dockyard. In this particular instance I spent quite a lot of time liaising with the officers and their informal view and this refers back to the fall-back position is that we currently have a situation in Plymouth where we have a dwelling with a lawful ancillary helicopter usage, with no regulation, landing in these sites, and before us, we have an application for a highly regulated commercial professional operation to remove the potentially risky scenario that Mr Rafferty highlighted in his presentation. So in terms of the risk assessment that we've undertaken, we've reviewed the risk assessment that has been provided. We are not risk assessment experts. We take the advice from the HSE which is that they do not advise against. One of the main things that's been provided in the risk assessment is that the parts of the helicopter have to be proven to one in 9 billion chance of failure. That's not one in 1 million not one in 10,000,001 in 9 billion chances of failure, which is a significant number. The reason they use twin engine aircraft is if one fails, the other one, means that they can land safely. We've taken that into account the current use of the site. I've been provided with the registration and the model type of the previous user's helicopter which was a single engine, in which case if, If that were to continue that engine fail, then the chance of a disaster is perhaps more likely than in this particular proposal."
"[Chair]: I think the thing to bear in mind is that at the moment, if we don't pass this. If we refuse it. What we're saying is, you can have unlimited flights in any direction using any form of aircraft.
[Planning Officer]: That is the situation that we have formed from a legal basis. This has been reviewed heavily by our legal department and the situation is, if planning permission weren't granted in this situation, the lawful land use would remain a private dwelling with the ability to land fly and store a helicopter of their choosing. Because it was established through a lawful development certificate rather than through a planning permission, we don't have any specific controls in terms of number of flights, hours of use, where they travel, whether they just sort of circle around the city, we don't have any of those sort of controls.
Chair: I would have thought that having some control, having some regulation is the better option of having it, or having totally zero regulation and control.
Planning Officer: That was one of the informal views of the Civil Protection Unit. One of their roles is to work with the COMAH sites. In terms of their on-site and risk assessments. The very fact that you would have a heavily regulated heliport would potentially reduce the risk rather than an ad hoc private scenario. That was their view."
"[Councillor]: Yes. I'm certainly at a loss on this. This is something we've not come across before. Where the risks involved, not to do with a building or anything, it's the use of that development in the widest possible sense. In terms of helicopters flying backwards and forwards and Mr Rafferty from Valero, he sounded very concerned, which concerns me. I think, with Chris answering. Councillor Corvid's questions, my level of anxiety has come down a bit. The thing is, I'm still going to be asked to make a decision which part of it is to do with risk and safety. I'm slightly baulking at the idea that I say yes, I'm fine with the development, I think I'm okay with the levels of noise I don't think that they're going to be an issue for me in terms of blocking it, but I'm just nervous about the area, within the city that has so many dangerous areas that I'm putting my name to this.
[Chair]: I'm not sure that's what we're doing. We are putting our trust in people who are eminently more qualified than, I hope I'm not being rude, than anybody on the committee. I would caution us, and it's not just helicopter flights. We do this all the time with drains and heights of walls and so on.
[Councillor]: I am well aware that there are experts that have been looking at this and that is something I am going to have to weigh against my natural disposition to step back from this because I feel that the risks... when I look at the Health and Safety Executive, they have not advised against it but what they have said is that they're advising us in terms of the safety of the people of the development in relation to the dangers that surround them. So it's the dangers to the development and not the danger of the development to those areas. It's a bit back to front for me. Chris, on the Health and Safety Executive, the way you've written it, are they two separate kind of decisions that they've come to? One is they think the risks are acceptable to everybody else and also, they think that the risk to the development is okay but that the other people might have to revamp their disaster plans to take account of the development that's there? If you see what I'm saying? I'm not explaining this very well. I apologise. The Health and Safety Executive, have they commented on the risk of the development and the helicopters to the sites, the danger sites and then also commented on the danger to the development from those sites. So, two separate things. In which case, if they say, I'm fine with the risk of the helicopters flying in and out to those sites, who am I to say no, I disagree with them.
…"
"Under the COMAH regs, we have to consult the competent authority. Quite often it's the HSE and the Environment Agency. They can act jointly and as you can see, they have both commented on the application. As a planning authority, we seek their technical advice about the risks which Chris has done. We then have to balance that as a planning authority. I know we say this quite a lot and it does come down to planning judgement and how you balance the risks as you see them against the other planning considerations. As Chris has already said, you have to take into account what the competent authorities are telling us which they have and then any other risk assessment that may have come forward through that process. So, it is, as I say, down to planning judgement and weighing up all the planning considerations, together, to see whether you're either for or against the application based on that."
"[Councillor]: Thank you Chair. I have two points to ask about. I found it really helpful to see the flight path. When this was first sort of published, that was one of the things I looked at. I was just wondering how these helicopters are going to access the site so I understand that they're essentially using that existing flight path but there's obviously this deviation isn't there, correct me if I'm wrong Chris, off that flight path and then across the fuel depots and then back out again. Given that kind of reality and having read some of the responses from both residents but also some of the businesses around, there is this concern about where it crosses over those industrial sites and also the ships that the tankers and things like that are more there as part of that work. I couldn't see any sort of condition in terms of communicating
…
Okay, so I guess my question then is whether there's any grounds for us to do any sort of, I suppose communication condition where, You know, because I noticed the Harbour Commission's response related to kind of having tankers in situ being refilled and things. Now they also say though that they're on a kind of as and when they come in schedule but is there any way we condition something where, just some sort of consideration needs to be given to that because I understand there's two flight paths and they're weather dependent but is there any condition, we might not be able to but I just felt it was worth...
…I mean with the stakeholders that are actually impacted by having a helicopter from a safety perspective fly over. So if that is where they're filling up from the tankers but also the tankers that come alongside the Cattewater as well that the helicopters are essentially flying over. Now I appreciate the probability of any of this is miniscule because it's already that flight path however, I'm just wondering whether that would mitigate some of the concerns of the community and businesses nearby. ….
"Councillor: ……Can I just ask Chris about the concerns reference the flights over Greenergy? If we grant this today, the Civil Aviation essentially is the authority that will not grant these flight paths that the landings and take off provided that risk assessment comes back and says that risk is of an acceptable nature in that flight path. That's the first question.
CK: That's absolutely correct. They could get planning permission but that doesn't mean they can fly until they've satisfied the Civil Aviation Authority."
"[Councillor]:… I just want to make it clear now that having heard the arguments that I'm actually in favour of this. I think the Health and Safety Executive have not come down against it. I'm also reassured that the Civil Air Authority will be monitoring the activities going on via the Air operator's licence. I think there are quite stringent rules that they put in place. Just one thing, though. 27th of October, 2018, as a Leicester City fan. You will know that an Augusta helicopter dropped out of the sky right beside the King Power statue. I just want Maddie to remember that helicopters do drop out of the sky. With the routes over the Sound and water, I don't think that is going to be a problem. I will support."
Ground 2 – The Defendant misunderstood the "fallback" position and, by relying on that misunderstanding, it skewed the process by which it made the Decision
Submissions
Discussion
"6. The site was granted a lawful development certificate (LDC) in 2001 establishing the use of the site for residential purposes (Class C3) with permitted ancillary private helicopter use. As it was established through an LDC no restrictions have been imposed, meaning helicopters in a private capacity can use the site without control in terms of frequency, time of day or flight path. Permission was later granted for a dedicated helicopter hanger.
….
16. In the event that planning permission is not be [sic] granted then the fall-back position is that the site could revert to its current status which is a residential dwelling with ancillary helicopter use (unrestricted and unregulated).
17. Whilst it is possible that the site could become occupied solely as a dwelling with no aviation activity, it is also reasonable to presume that this is a unique opportunity for an individual to occupy and utilise the site in a private capacity, perhaps in a more intense way than what is being proposed by Halo Aviation. 18. Therefore, and in the context of the 'fall-back' position debate, it is the officer's view that a reasonable amount of weight should be given to comparing the intensity of the current private use vs. the proposed commercial use in coming to a decision."
"7.32. Permitted development rights also exist for the use of land for not more than 28 days in total in any calendar year under The Town and Country Planning (General Permitted Development) (England) Order 2015 ("The Order") Part 4 (Temporary buildings and uses) Class B – temporary use of land.
7.33. It is therefore within the applicant's ability to operate the proposed use for a period of no more than 28 days each year. There would be no such restriction on the frequency or timings of flights during the permitted 28 days.
7.34. These permitted development rights also form part of the fallback position as the helipad (not the building(s)) could be used on a commercial basis for up to 28 days."
"Heliport Regulations, Betterment and Economic Opportunities:
60. Officers are acutely aware that in the first instance this is an unusual site for a residential dwelling and to have unregulated helicopter use does raise health and safety concerns. Many of the letters of representation highlight concerns over placing such a use adjacent to so many hazard sites; however it is important to remember that with or without a consent, helicopters will still be able to land at this site. The HSE has already provided its position on the proposed development, and whilst Health and Safety is a very important matter this is covered by separate legislation. Notwithstanding, officers are of the view that the proposed use does would in fact provide significant benefit to the local area from a Health and Safety perspective.
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63. However, the applicant has highlighted that although the heliport will be unlicensed, it must be "CAA approved and regulated site" similar to numerous other heliports around the county. Furthermore, Halo Aviation operates under a CAA Air Operator's Certificate which has held the appropriate authorisation to land at congested sites for some 10 years or more. Additionally, commercial helicopter operators require the granting of an Air Operator's Certificate (AOC) to be legally authorised to conduct their specific operations. These operators must adhere to stringent organisational and operational requirements and come under the direct oversight of the CAA as the competent authority for the UK. The applicant has provided written evidence from the CAA which does not throw into doubt the proposed use of the site as a commercial heliport.
64. The applicant proposes to operate twin engine modern aircraft, a condition of the above CAA Air Operators Certificate which will need to be maintained to be considered 'airworthy' in accordance with relevant legislation. All aircraft will be flown by professional pilots.
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66. All flights will need to follow strict flight paths set out in the approved plans. Furthermore, flights will need to be carried out in accordance with the 'Deconfliction' agreement to avoid conflict with fuel vessels adjacent to the site.
67. In comparison, any helicopter usage associated with the dwelling would have no such requirement. It would not need to gain CAA approval or meet other legislative requirements that a commercial operation would. Private aircraft are not held to the same safety/maintenance standards and pilots are unlikely to have the same level of experience and training. The lack of current restrictions imposed on the site means private helicopters can land or take-off at any time of the day and as many times as they like, and do not have specific landing procedures. They could also fly at any altitude on any flight path they choose without recourse posing potential social and environmental issues. It is perhaps these previous activities that have resulted in concern amongst residents about future use.
68. In acknowledging that this is an unusual location there are clear benefits in changing the use of the site that should actually provide comfort to residents and adjacent COMAH operators. Officers consider this is accurately set out in Appendix 13. Whilst the Councils Civil Protection department are only required to comment on health and safety matters, they have indicated informally to officers that the proposal would provide benefit in terms of on and off site risk management. The operation of the site as a commercial heliport would be more tangible and accountable for its operations compared to the current private/recreational use permitted. In officers view this proposal safeguards the area from ad-hoc unregulated use."
Ground 3 – The Defendant acted irrationally by relying on the existence of other regulatory regimes in deciding to grant permission
Submissions
Discussion
"The UK Civil Aviation Authority (CAA) oversees and regulates civil aviation in the UK, the regulations are set by the European Aviation Safety Agency (EASA). The EASA regulations allow an aircraft to land and taken off within a congested area however the UK CAA have taken a stricter view than EASA. An operator must obtain the permission of the CAA prior to landing and taking off from a congested areas.
Should an operator have a requirement to land in a congested area they would initially apply to the CAA giving details of the landing site and a detailed risk assessment. The CAA would review the application and risk assessment and if necessary contact the operator for further information. Once the CAA has received all the necessary information and were happy the flight could be conducted without any risk to third parties on the ground or paying passenger on the aircraft they would issue a permission. There may be some conditions attached the permission, an example shown below:
This Permission is granted subject to the following conditions:-
a) throughout all flights pursuant to this Permission the helicopter shall be operated in accordance with Performance Class 1;
b) flight pursuant to this Permission shall be solely for the purpose of landing at and taking-off from the site at………; and
c) flight pursuant to this Permission shall only be undertaken with the agreement in writing of the owner of the site and with the prior knowledge of the local police authority.
d) flight pursuant to this Permission shall be conducted in accordance with procedures contained in the document……… attached to the email submitted to the CAA on……….
Initially the permission is given to an operator on a case by case basis. Once the operator has the experience and procedures in place and can demonstrate competency to the CAA they would be able to apply for the long-term permission which would be valid for one year.
Although the CAA gives the permission the operator/helicopter pilot must ensure they can and do conduct the flight safely without any risk to third parties on the ground and passengers on the helicopter. The CAA also remind the operator to minimise nuisance because of noise and to avoid overflying hospitals, schools and other sensitive areas.
From the details I have seen so far with regards the landing site at Victoria House Cattedown Plymouth I see no legal reason why a permission would not be granted." (underlining is Court's emphasis)
"(a) I cannot comment on the planning application itself. I can however briefly outline the process for obtaining a permission to land in a congested area. When a landing site is in a congested area the operator is required to apply to the Civil Aviation Authority (CAA) for a take off and landing permission, this permission can be for a specific one off flight or to cover the operator for up to one year (long term permission). The long term permission is only issued to established operators who have a proven process for conducting these flights safely.
(b) On application we would need details of the landing site location and a risk assessment, the risk assessment should cover all aspects relevant to landing at the site for example location, surroundings, surface, weather, aircraft performance and any other areas that may be relevant. The operator would need to mitigate against these risks before a permission was issued.
(c) If a long term permission was issued the operator would be expected to update their risk assessment at regular intervals to address the changing landscape and environment.
(d) The flight path document would be something I would expect from an operator who was applying for a permission. It appears they have taken into consideration the environment and elected to approach and depart over the water minimising the risk to third parties on the ground. We would expect to receive a risk assessment from each operator who does not have a long term permission and wants to fly in and out of the site, a generic risk assessment prepared by one company would not be acceptable for other companies to use. It is for each company/operator to assess the risks and mitigate for them." (underlining is Court's emphasis)
"63. However, the applicant has highlighted that although the heliport will be unlicensed, it must be "CAA approved and regulated site" similar to numerous other heliports around the county. Furthermore, Halo Aviation operates under a CAA Air Operator's Certificate which has held the appropriate authorisation to land at congested sites for some 10 years or more. Additionally, commercial helicopter operators require the granting of an Air Operator's Certificate (AOC) to be legally authorised to conduct their specific operations. These operators must adhere to stringent organisational and operational requirements and come under the direct oversight of the CAA as the competent authority for the UK. The applicant has provided written evidence from the CAA which does not throw into doubt the proposed use of the site as a commercial heliport."
CAP 793 Safe Operating Practices At Unlicensed Aerodromes
"5 Obstacles
5.4 If the aerodrome does not feature in any aeronautical publications, a procedure should be developed whereby visiting pilots are warned of hazards prior to arrival. A requirement to obtain prior permission before landing will facilitate such hazard warning by allowing visiting pilots to be briefed. Such information may also be usefully included on the aerodrome's website, if one exists."
CAP 1864 CAA Onshore Helicopter Review Report, p48
"The operating environment
13.19. There is anecdotal evidence that a significant amount of ad hoc charter is at relatively short notice and therefore the operational control procedures referred to earlier are particularly important…"
"Off Aerodrome Landings
13. 22 The helicopter's key attribute of being able to operate from sites other than aerodromes is made easier in the UK than in some other European countries. Fundamentally the site must be safe in terms of aircraft performance and risk to third parties; additionally, the land owner's permission is required. These requirements are the operator's responsibility. However, in the UK there is a requirement that off-aerodrome landings within a congested area require permission from the CAA.
13. 23 Most operators are well versed in the specific requirements for ensuring that a landing site is suitable
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16.9 Permissions and Exemptions may be applied for and granted if the CAA is satisfied that a mitigated and acceptable level of safety has been assured. For those sites which are in congested areas and which require permissions from the CAA, unless the operator can show that there is no third-party risk in the event of a power unit failure, such permissions will be conditional upon the aircraft being operated to Performance Class 1. Thus, in most cases, Class 1 performance is the required norm." (underlining is Court's emphasis)
Ground 4 The Defendant erred in law by granting permission to an application that conflicted with the development plan when no other material considerations justified such a decision
Submissions
Discussion
Ground 5 – the Decision was irrational
Submissions
Final Conclusion