Summary: Mr X complained about the Council’s decision to allow storage of hazardous substances on land near his home. Mr X believes the Council did not properly consider the risk the development posed. There was no fault in the way the Council made its decision.

The complaint

1. Mr X complained the Council should not have approved an application for storage of hazardous substances on land near his home.
2. Mr X says the Council should have required a proper risk analysis, which included numerical data to help it determine the statistical probability of a hazard occurring.
3. Mr X says that, because of the Council’s failure, there could be a threat to the safety of nearby residents. Mr X would like the Ombudsman to inform the Council it has failed to properly assess the application and to cancel the approval it granted.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
7. I have also considered:
• the Government’s Planning Policy Practice Guidance on Hazardous Substances; and
• the Planning (Hazardous Substances) Regulations 2015
8. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

9. When considering proposals relating to hazardous substance installations, councils act as the Hazardous Substances Authority. When making their decisions, councils must seek advice from a competent authority, which, depending on the nature of the application, could be:
• the Office of Nuclear Regulation;
• the Health and Safety Executive; and/or
• the Environment Agency.
10. Government guidance on hazardous substance decisions says that it is for these authorities to advise councils on the nature and severity of the risks that might arise.
11. The process is meant to ensure that, before a hazardous substance development goes ahead, there are necessary measures in place to prevent major accidents and protect people and the environment.
12. Depending on the nature of the proposal, an application may also require separate planning approval.

Background

13. Mr X has been objecting to the storage of hazardous substances on a site near his home for many years. He says that the Council has misunderstood its obligations because it has confused ‘risk’ with ‘hazard’. Mr X says a ‘hazard’ is a situation which could lead to an unwanted or unsafe consequence, whereas a ‘risk’ in the context of health and safety and planning regulation, is the probability of a consequence occurring.
14. Mr X says the requirement for numerical data for risk evaluation is a regulatory requirement found in the Planning (Hazardous Substances) Regulations 2015.
15. Before it made its decision, the Council’s planning case officer prepared reports setting out a summary of the key material planning considerations, including:
• the details of the site and application;
• the relevant development history of the site;
• details of relevant policy and guidance;
• objections from residents;
• comments from consultees, including the Health and Safety Executive and the Environment Agency;
• an assessment of the material planning considerations, including the risk to the public and the environment; and
• the case officer’s recommendation, to approve the application subject to planning conditions.
16. The application was considered by the Council’s planning committee, who deferred its decision so its members could visit the site. The application was approved by the Council, subject to planning conditions.

My findings

17. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
18. I have read the government’s guidance on hazardous substance approvals and the Planning (Hazardous Substances) Regulations 2015. The government’s guidance has a glossary of terms and the regulations has an article on interpretation of terms. The guidance also includes links to relevant guidance and regulations, including the 2015 regulations.
19. I did not find a definition of ‘risk’ that requires numerical data in either the guidance or the regulations.
20. The guidance states that councils, when acting as hazardous substance authorities, must consult certain bodies, including the Health and Safety Executive, but it does not specify the form that any response should take.
21. The regulations set out hazardous substance consent procedures but do not include a definition of the word ‘risk’ or a requirement that councils must insist on numerical data to assess it.
22. Mr X has provided detailed arguments (including a diagram) on why he thinks the Council should have adopted his definition of ‘risk’ and so requested numerical data to assess the threat the development posed. While it would be fault for a council to make a decision that was unlawful, we would need good and clear evidence to demonstrate this. This is because we are not a court and cannot determine the law. I found no evidence to suggest the Council’s decision was unlawful.
23. The government’s guidance seems clear enough, and as the Council has consulted the appropriate bodies and followed the process we would expect, I find no fault in the way it made its decision.
24. I should add, that even if I had found fault, I could not recommend the remedy Mr X wants. Only the high court can quash a decision made by a planning or hazardous substance authority.

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Final decision

25. I completed my investigation, as I found no fault in the way the Council made its decision.

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Investigator's decision on behalf of the Ombudsman