Appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 by Shell Chemicals UK LTD and Shell UK LTD against Scottish Ministers (Court of Session)

Factual and Procedural Background

A high‑pressure ethylene pipeline owned and operated by Company A and Company B runs south from a refinery in The City to a petrochemical plant in The City and crosses the southeast corner of a quarry (site) being developed by Company C. The pipeline is classified as a major hazard by the Regulator.

Company C held planning permission for extraction at the site subject to conditions including a condition requiring the pipeline to be relocated outwith the site before extension works commenced and a condition requiring confirmation from Company A/B that predicted vibration levels were acceptable (both imposed for public safety). Company C applied under section 42 to vary or remove those conditions. The local authority refused the application on public safety grounds. On appeal, the reporter granted permission, removing the relocation requirement and modifying the vibration condition. Company A and Company B appealed that reporter's decision under the statutory appeal route.

Legal Issues Presented

1. Whether the reporter was entitled to remove the planning condition requiring relocation of the pipeline prior to commencement, i.e. whether that condition was necessary.
2. Whether reliance on a private deed of servitude and other statutory controls duplicated or supplanted the need for a planning condition.
3. Whether the reporter rationally and appropriately relied on advice from the Regulator in concluding that existing statutory and regulatory controls secured public safety.
4. Whether removal of the pipeline‑diversion condition resulted in failure to provide mitigation required by Policy 18 of National Planning Framework 4.
5. Whether the Environmental Impact Assessment (EIA) was adequate in light of effects of relocating the pipeline.

Arguments of the Parties

Appellants' (Company A and Company B) Arguments

• The deed of servitude and private rights could not be relied on for planning purposes; the reporter erred in treating them as material and inverted the onus on Company C under section 42.
• Condition requiring relocation was necessary and did not duplicate other controls; without it excavation could commence and later be halted by the Regulator, leaving no guarantee of diversion before works.
• The reporter overstated the sufficiency of Regulator advice and misinterpreted it, placing undue weight on it.
• Removal of the diversion condition meant mitigation required by Policy 18 NPF4 was not secured by planning control.
• The EIA was inadequate because diversion of the pipeline was an inevitable part of the project and required detailed assessment.

Respondents' (Scottish Ministers and supporting parties) Arguments

• The reporter correctly applied the necessity test in Planning Circular 4/1998 and was entitled to find that imposition of a planning condition would duplicate existing statutory controls and be unnecessary.
• The deed of servitude was part of the factual background but not a material basis for the decision; the reporter relied primarily on the Regulator's assessment and the statutory duties on the operator and developer.
• The Regulator's advice, assuming compliance with health and safety law, supported the conclusion that public safety was adequately protected without the relocation condition.
• Mitigation required by Policy 18 could be secured by statutory schemes and regulatory obligations rather than by a planning condition in this case.
• The EIA and supplementary material provided the appropriate high‑level assessment given the diversion route was not yet known and the diversion would be a separate project.

Table of Precedents Cited

Court's Reasoning and Analysis

The court addressed five grounds of appeal sequentially.

First, on reliance on the deed of servitude and other controls, the court found the servitude formed part of the factual background but was not a material factor driving the reporter's decision. Central to the reporter's conclusion was the sufficiency of other controls (statutory duties and Regulator oversight) to secure public safety. The reporter applied the necessity test from Planning Circular 4/1998 and concluded a planning condition requiring prior diversion would duplicate existing controls and was therefore unreasonable.

Second, on alleged irrationality and inconsistent reasoning between the two contested conditions, the court held the reporter properly applied the necessity test to each condition in context. The reporter modified the vibration condition to an enforceable standard because, unlike diversion, there was no adequate regulatory control outside planning for vibration limits.

Third, on reliance on the Regulator's advice, the court concluded the reporter reasonably and lawfully gave weight to the Regulator's view that, assuming compliance with health and safety legislation, public safety would be secured. The court accepted that the Regulator retained powers to prevent unsafe works and to require authorisation for diversion, making the appellants' hypothetical scenario unlikely.

Fourth, on mitigation under Policy 18 NPF4, the court held that mitigation need not always take the form of a planning condition and that statutory and regulatory mechanisms could provide acceptable mitigation; the reporter expressly considered Policy 18 and reached a permissible conclusion.

Fifth, on EIA adequacy, the court accepted the reporter's view that a high‑level assessment of diversion effects was appropriate where the diversion route was indicative and would be the subject of a separate project; the EIA and supplementary material provided the assessment that was possible given the uncertainties.

Overall, the court found no error of law, irrationality, or failure to apply required tests in the reporter's decision.

Holding and Implications

DISMISSED — The appeal by Company A and Company B is refused.

Direct effect: the reporter's decision granting planning permission with the modified conditions stands. The decision does not establish a novel legal principle; it upholds the reporter's application of established tests on the necessity of planning conditions, the weight to be given to specialist regulator advice, and the scope of EIA in circumstances where associated works are not yet defined.