Inner House refuses appeal against modification of planning permission in quarry containing ethylene pipeline

About this case:

• Citation:
  [2026] CSIH 29
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Wise

Shell Chemicals UK and Shell UK Ltd argued that the reporter had relied on immaterial factors and erroneously concluded that the deleted condition served no purpose in light of the servitude agreement. Planning permission for the extraction and processing of hard rock aggregates at the site was granted in March 2009 with an original end date of June 2029, with permission for an extension originally granted in 2020 subject to two conditions concerning the appellant’s pipeline.

The appeal was heard by the Lord President, Lord Pentland, with Lady Wise and Lord Clark. Burnet KC appeared for the appellants and Haddow, advocate, for the respondents.

Seemed no purpose

In 1991 Shell UK and Hodge’s predecessor in title entered into a deed of servitude regarding the passage of the North West Ethylene Pipeline through the southeast corner of Duneaton quarry in South Lanarkshire. That agreement included provision regulating the position as between Shell UK and Hodge should Hodge wish to carry out any development on the property subject to the servitude. Following the 2020 extension, Hodge lodged a further application for new permission to carry out development without compliance with the pipeline-related conditions, which was refused due to a concern about public safety.

Hodge appealed to the Scottish ministers and in response to the concerns raised by the planning authority proposed an alternative condition in respect of the relocation of the pipeline. The reporter, after seeking advice from the Health and Safety Executive, concluded that the original version of the relocation condition (condition 41) was not reasonable, and that the proposed alternative was unenforceable. There seemed no purpose in having a planning condition to protect the pipeline when the servitude already fulfilled this role. The reporter also replaced condition 43, which required Shell to confirm that vibration levels from the quarry were acceptable, with a condition specifying a maximum level.

For the appellants it was submitted that the servitude could not be relied on to regulate the development in planning terms. The reporter had inverted the onus which was squarely on Hodge to satisfy him that the new permission should be granted with different or deleted conditions. The only means by which the safe implementation of the development could be ensured was by the imposition of a planning condition.

Counsel for the respondents submitted that both Shell and Hodge were also bound by their obligations under health and safety legislation not to damage the pipeline. Accordingly, it was unlikely that Hodge would commence work without being certain that it could be completed in a manner compliant with health and safety regulations. In any event, planning permission was simply, as the term suggested, a consent to develop the land, and did not constitute a requirement that the land be developed.

Unrealistic scenario

Delivering the opinion of the court, Lady Wise began: “We reject the suggestion that the reporter conflated the statutory regime and the private law arrangements between Shell UK and Hodge and erred in placing undue reliance on those arrangements. The deed of servitude was part of the background to a dispute between Shell UK and Hodge. It was not a material factor in the reporter’s determination but was noted by him in the context of Shell UK having a separate mechanism to halt potentially damaging activity by Hodge should that be required.”

She continued: “Condition 41 had been imposed initially to protect public safety and would only require to form part of any subsequent permission if it was necessary in that context. While Shell UK had referred to protecting the integrity of the pipeline in submissions to the reporter, it seems to us that such protection is inextricably linked with public safety concerns; self-evidently, damage to a major hazard gas pipeline in the course of construction work would be likely to endanger public safety.”

Considering the consistency of the reporter’s decision, Lady Wise said: “Far from being illustrative of inconsistency, the reporter’s differing decisions on conditions 41 and 43 reinforce that he applied the necessity test appropriately. The statutory and regulatory regime governing the pipeline was sufficient to render a condition on its diversion unnecessary, while the absence of controls other than by Shell UK in relation to the vibration levels led to a different conclusion on the application of the same test to that issue.”

She concluded: “We consider that the scenario postulated on behalf of Shell UK, that Hodge would disregard applicable health and safety legislation and commence work in the absence of a planning condition about the pipeline, is unrealistic. Counsel accepted that the HSE authorisation was required for any proposed diversion of the pipeline. The HSE has stated in terms that they would continue to work with both Shell UK and Hodge on any proposals to do that. The powers available to the HSE include the serving of a notice that would prevent works taking place without the authorised relocation of the pipeline, given the information that those works would otherwise risk public safety.”

The appeal was therefore refused on all grounds.