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Shell Chemicals UK Ltd and another v The Scottish Ministers
Shell Chemicals UK Ltd and another v The Scottish Ministers
XA51/25
Tuesday 21 April 2026
10:30 to 13:00 then 14:00 until conclusion
First Division
Overview
[1] This statutory planning appeal relates to a proposed amendment to the planning conditions for the extension of Duneaton Quarry. The land on which the quarry is located is owned by Acer Rentals Limited. The quarry is operated by Hodge Plant Limited. Both companies are ultimately controlled by Mr Alistair Hodge.
[2] An ethylene pipeline owned by Shell Chemicals UK Limited and operated by Shell UK Limited (the appellants) crosses the southeast corner of the quarry. A legal agreement, known as a deed of servitude, granted access rights for the pipeline on the land occupied by the quarry.
[3] In 2020 planning permission was sought by Hodge Plant Limited (the applicant) and granted for the extension of the quarry subject to a number of conditions. This appeal relates to two of those conditions. The first (condition 41) is that the ethylene pipeline operated by the appellants would be relocated outwith the site boundary. The second (condition 43) is that following the relocation of the pipeline but prior to the extension of the quarry, the operator of the quarry required to obtain written confirmation that the vibration levels were of an acceptable level to the appellants. This confirmation was to be provided to the planning authority (South Lanarkshire Council).
[4] The applicant’s proposed amendment to the planning permission, which is sought under section 42 of the Town and Country Planning (Scotland) Act 1997, seeks to delete these two conditions. It is argued that the conditions are unnecessary as there are two mechanisms which are open to the appellant to prevent damage to the pipeline from the operation of the quarry. The first is the terms contained within the deed of servitude. The second is the statutory duties on the applicants and the appellants under the health and safety legislation applicable to the quarry and to the gas pipeline.
Planning application to the local authority
[5] The application to amend the planning permission was initially refused by the planning authority on 26 June 2024. The primary reason for refusal was the lack of planning control if conditions 41 and 43 were deleted. The deed of servitude was considered to be a private legal matter which did not relate to the council. The council considered it was only required to consider the overall public interest. The council did not consider that there was a guarantee that public safety would continue to be protected if these conditions were deleted. The applicant appealed to the Scottish Ministers.
The reporter’s decision
[6] The reporter considered that the relocation of the pipeline was not a necessary nor reasonable planning condition. He did not consider that the condition was required to ensure public safety as the pipeline was regulated by health and safety legislation. As such, he did not consider that by deleting the condition there would be a lack of planning control. Nor did he consider the proposed wording of condition 41A to be reasonable.
[7] The reporter also considered it unreasonable to allow the appellants, as a third party with private interests, to make an assessment of what they considered to be acceptable in terms of vibration limits from the quarry. This meant that they had discretion over the entire development. The reporter considered that the appellants had private interests but had no duty to act in the public interest and as such for the purpose of public safety there was no reason that this assessment should be left to the appellants.
[8] The appeal was allowed and planning permission was granted on 26 June 2024, with the deletion of conditions 41 and 43. The appellants now appeal against the decision of the reporter to the Inner House.
The appeal
[9] The appellants challenge the reporter’s decision on five grounds. First, that the reporter relied on a private legal agreement to establish sufficient planning control. They argue this was an error in law, irrational and consequently meant that the reporter took into account an immaterial consideration. Secondly, they challenge the reporter’s decision in respect of his reasoning as the reporter relied on the terms of the servitude to delete condition 41 but also considered that the appellants were a third party with private interests and had no duty to act in the public interest. Thirdly, the decision is challenged in respect of the reliance on the Health and Safety Executive (HSE) advice. Fourthly, the appellants contend that under the National Planning Framework 4, it is required that the impacts of developments should be mitigated. They argue that the removal of the pipeline from the site was the mitigation against risk to public safety. In removing the condition, there is no mitigation. Finally, the sufficiency of the Environmental Impact Assessment (EIA) is challenged as they contend that it did not assess the relocation of the pipeline.
[10] The respondents contend that the reporter was correct in his understanding of the purpose of condition 41, which was for the protection of public safety, and he assessed it against that purpose. Secondly, the reporter did not contradict himself, he relied on the statutory regime operated by the HSE to control the danger to the public, not private law rights. Thirdly, regarding the reliance on HSE advice, they contend that the reporter was entitled to reach the conclusion that the HSE’s position was that the statutory regime was sufficient to control the risks to the pipeline. Fourthly, there was no absence of mitigation, the reporter considered that this could be managed by the HSE statutory regime. Finally, the respondents contend that the EIA did address the environmental impact of relocation when read with the supplement provided in January 2025.
This case will be heard by the First Division at 10.30am on 21 April 2026.