Hazardous Substance

Hazardous Substances in the United Kingdom

Hazardous Substances Consent and Land Planning in Scotland

Hazardous substances consent is required for the presence of a hazardous substance on, over or under land (which includes presence in buildings and on structures) unless the aggregate quantity of the substance present is less than the controlled quantity for that substance (section 2(1) and (2) of the The Planning (Hazardous Substances) (Scotland) Act 1997 (Chapter 10), also called here “Principal Act”).

The lists of categories of hazardous substance and named hazardous substances and controlled quantities for which hazardous substances consent is required are given in Schedule 1 to the 2015 Regulations. Categories of hazardous substances and named hazardous substances are listed in column 1 of Parts 1, 2 and 3 of the Schedule and the relevant controlled quantity is listed in column 2. With three exceptions, the substances and controlled quantities are taken from Annex I to the Directive. Hydrogen, natural gas (including liquefied natural gas – LNG) and liquefied petroleum gas (LPG) in Part 2 have lower controlled quantities than specified in the Directive. This is because these substances are likely to be stored in locations across the UK where lower quantities than those specified in the Directive could have a major accident hazard potential.

Where a substance named in Part 2 of Schedule 1 to the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015 (SSI 2015/181) (the “2015 Regulations”) also falls into a category of hazardous substances in Part 1 of that Schedule, the controlled quantity in Part 2 must be used. For example, chlorine is a named substance in Part 2 with a controlled quantity of 10 tonnes. It also falls within the H2 Acute Toxic and E1 Hazardous to the Aquatic Environment categories of substances within Part 1 of Schedule 1 which have controlled quantities of 50 and 100 tonnes, respectively. In such cases, the controlled quantity of this substance will always be the controlled quantity listed in Part 2 of the Schedule, 10 tonnes in the case of chlorine (See the note at the start of Schedule 1 to the 2015 Regulations).

Where a substance which is not a named substance falls within more than one of the categories of substances in Part 1 of Schedule 1, the lowest controlled quantity will apply for that substance. (See Note 7 in the Notes to Parts 1 and 2 of Schedule 1).

Part 3 of Schedule 1 deals with the situation in which a hazardous substance that falls within a category in Part 1 or is named in Part 2 may be present in a quantity at or above the controlled quantity during loss of control of a process (including storage activities). This is the kind of incident that gave rise to the Directive.

It is not intended that consent is required for the hazardous substances generated during a loss of control of a process (including storage). The requirement is for the site operator to obtain consent for the presence of the substance(s) which are used in that process. The controlled quantity for a process substance will be the quantity whose presence, alone or in combination with other substances used in the process, might lead to a substance within a category in Part 1 or named in Part 2 of Schedule 1 being generated at a quantity equal to or greater than its controlled quantity.

Part 3 of Schedule 1 relates to “where it is reasonable to foresee” that a substance may be generated through a loss of control – see Annex M and link to Health and Safety Executive (HSE) guidance on the Control of Major Accident Hazard Regulations 2015 (SI 2015/ 483) (“COMAH Regulations”) and “loss of control”.

Exemptions

The 2015 Regulations specify exemptions from the requirement for hazardous substances consent (See Annex C). Site operators and planning authorities should check the criteria for exemptions carefully, especially as the specific elements of certain types of exemption have changed over the years.

Aggregate Quantities

Generally, a consent will be required when the aggregate quantity of a hazardous substance is present in an amount equal to or greater than its controlled quantity (see exemptions below).

In determining the aggregate quantity of a category of hazardous substance or a named hazardous substance present on land (land A), account is also to be taken of the amount of the substance held on, over or under other land (land B) which is controlled by the same person and which, in all the circumstances (including in particular the purposes for which both areas of land are used) forms a single establishment[3] with land A. In other words the quantity of the hazardous substance present on land B must be included in any calculation to establish the aggregate quantity present. There is no precise limit to the distance that may exist between areas of land that may be considered to constitute a single establishment for the purposes of section 2(2)(aa) of the Principal Act. In most cases it should be clear what constitutes the establishment having regard to all the circumstances.

B14. The person in control of the land may not necessarily be the legal owner; for example, a site may be under the control of a tenant rather than the owner. Any two bodies corporate are to be treated as being one person if one is a subsidiary of the other, or both are subsidiaries of the same body corporate (section 38(3) of the Principal Act).

The Addition Rule

B15. Even where having aggregated all of a category of hazardous substance or named substance the controlled quantity has not been reached, hazardous substances consent may still be required. The Directive, and the 2015 Regulations, require categories of hazardous substance and named hazardous substances with similar properties present below their individual controlled quantities to be considered together.

B16. To establish whether a consent is required in these circumstances, hazardous substances present in amounts less than their controlled quantities will be added together according to the addition rule (see Note 5 of the Notes to Parts 1 and 2 of Schedule 1). This involves expressing quantities of hazardous substances with similar hazards present as partial fractions of the controlled quantities and adding them together. If the sum is 1 or greater, then consent is required for each of the substances which have been included in the calculation. Up to three calculations may be required for each site as the hazards are grouped in Physical, Health and Environmental hazards. Only substances with similar properties should be aggregated, so toxic substances (Health) would not be aggregated with flammable substances (Physical). One substance may be included in more than one calculation if it has multiple hazardous properties.

B17. If a substance is named in Part 2 of Schedule 1 then the quantity in column 2 of Part 2 should be used. For substances with quantities marked with an asterisk (hydrogen, natural gas (including LNG) and LPG), the controlled quantities specified in Note 5 in the Notes to Parts 1 and 2 in Schedule 1 should be used. This is because we have adopted lower controlled quantities than the Directive for the individual presence of these substances in Scotland (see paragraph B5).

Exemptions from Hazardous Substances Consent Requirements in Scotland

C1. Regulation 4 and Schedule 2 set out circumstances in which hazardous substances consent is not required as exemptions to normal requirements. Scottish Ministers also have powers in section 26 of the Principal Act to make directions creating temporary exemptions in certain circumstances – see “Emergencies” below.

C2. Site operators and planning authorities should check the criteria for exemptions carefully, especially as the specific elements of certain types of exemption have changed over the years.

C3. Two new exemptions were introduced through the 2015 Regulations relating to (a) presence of established substances and (b) minor changes to the types and quantities of substances.

Military Establishments

C4. Hazardous substances consent is not required for hazardous substances present at military establishments, installations or storage facilities.

Nuclear Sites

C5. The consent procedure does not apply to the presence of a hazardous substance which also creates a hazard from ionising radiation if present on, over or under land in respect of which a nuclear site licence has been granted or is required for the purposes of section 1 of the Nuclear Installations Act 1965 (Chapter 57). However, hazardous substances present at sites licensed under said section 1 which do not create hazards through ionising radiation, will require hazardous substances consent if they are present at or above the controlled quantities.

Intermediate Presence Related to the Transport of Hazardous Substances

C6. Section 2(3) of the Principal Act provides that the temporary presence of a hazardous substance while it is being transported from one place to another is not to be taken into account. This exemption does not apply if the hazardous substance is unloaded or it is present on, over or under land with a hazardous substances consent for any substance, or in respect of which (not taking account of the substance being transported) there is required to be such a consent for any substance.

C7. Where a consent is required for the presence at a site of any hazardous substance (excluding substances being transported) then those substances present on a temporary basis inside the site will also have to be taken into account in calculating the quantity of the substances present at the site.

C8. The term “temporary presence” is not defined in the Principal Act. The question of whether a vehicle’s presence is temporary or not will be a matter of fact and degree, depending on the particular circumstances. The planning authority may reach the view, for example, that a controlled quantity of a substance has been kept on a vehicle for a sufficiently long period in one particular place for it to amount to a storage use, which is outside the purpose of this exemption. Judgement may also be required in considering whether a substance has been “unloaded”.

C9. The exemption in paragraph 3 of Schedule 2 complements that in section 2(3) of the Principal Act by dealing with the situation where a hazardous substance has been unloaded while it is being transported from one place to another. This is intended to cover the situation where a substance has been taken off one vehicle or vessel for the express purpose of transferring it to another. As with the section 2(3) exemption, it will be a matter of judgement as to whether the presence is a temporary one. Moreover, there should be a clear intention to transfer the substance to another means of transport (as may be illustrated, for instance, by a transportation contract). Where a substance has effectively gone into storage it would not be covered by this exemption.

Pipelines

C10. The hazardous substances consent system does not apply to controlling the presence of substances in local or cross-country pipelines. Existing controls relating to such pipelines, as set out in the Pipe-lines Act 1962 (Chapter 58) and the Pipelines Safety Regulations 1996 (SI 1996/ 825) will continue to be relied upon. However, substances contained in that part of such a pipeline which is on, over or under an establishment should be aggregated with other substances on the site for the purposes of hazardous substances consent, because they should be regarded as part of the overall inventory of substances on that site. This is consistent with the COMAH Regulations. Substances contained in a pipeline which is wholly within a site should also be aggregated with other substances.

Minerals

C11. Hazardous substances consent is not required for the presence of hazardous substances in the exploitation, namely the exploration, extraction and processing, of minerals in mines and quarries, including by means of boreholes.

C12. This exemption does not apply to hazardous substances present in:

onshore underground gas storage in natural strata, aquifers, salt cavities and disused mines;
chemical and thermal processing operations and storage related to those operations; or
operational tailings disposal facilities, including tailing ponds or dams.

Waste Land-fill Sites

C13. Hazardous substances present at waste land-fill sites are exempt from the requirement for consent. The presence of such substances may of course be subject to controls exercised through the waste management licence issued by SEPA. The exemption only applies to hazardous substances at a waste land-fill site and not to substances present at other disposal sites e.g. incinerators.

C14. This exemption does not apply to hazardous substances present in:

a site used for the storage of metallic mercury pursuant to Article 3(1)(b) of Regulation (EC) No 1102/2008 of the European Parliament and of the Council on the banning of exports of metallic mercury and certain mercury compounds and mixtures and the safe storage of metallic mercury;
onshore underground gas storage in natural strata, aquifers, salt cavities and disused mines;
chemical and thermal processing operations and storage related to those operations; or
operational tailings disposal facilities, including tailing ponds or dams.

Emergency Unloading from Ships

C15. The situation may arise where a ship or other sea-going craft containing a hazardous substance is allowed to enter a harbour in a dangerous condition or where, in the interests of health or safety, the harbour master waives the usual requirements for advance notice. The substance may need to be removed and stored as a matter of urgency. To cater for this, paragraph 9, subject to certain criteria, exempts from requirements for hazardous substances consent the presence of a substance removed from such a vessel, for a period of up to 14 days from when it is unloaded. This will allow time for suitable alternative storage arrangements to be made, if necessary.

Explosives

C16. Hazardous substances consent is not required in certain cases for the presence of an explosive, within the meaning of regulation 2(1) of the Explosives Regulations 2014 (SI 2014/ 1638), where a licence is required and has been granted under those regulations by HSE or ONR.

C17. Hazardous substances consent is also not required where an explosive licence within the meaning of regulation 2(1) of the Dangerous Substances in Harbour Areas Regulations 1987 (SI 1987/ 37) has been issued (see paragraphs F32 to F34 of Annex F).

C18. Explosives present at stores licensed by local authorities under the provisions of the Explosives Regulations 2014 are not covered by this exemption. The quantity of explosives licensed by local authorities is substantially less than the controlled quantity for either of the generic categories of explosives the substances may fall within, so there should be no question of a hazardous substances consent being required for the presence of these explosives alone. However, it is possible that in aggregation with other hazardous substances present at a site they could combine to make it necessary for them to be subject to a consent.

Presence of Established Substances

C19. There is an exemption in relation to substances which were present at a site legally without hazardous substances consent prior to 1 June 2015 and which, purely as a result of changes in the 2015 Regulations, would require consent were it not for this exemption.

C20. The exemption applies if:

the substance was present at any time in the 12 month period prior to 1 June 2015;
hazardous substances consent was not required for the substance at the time it was present during that 12 month period;
such consent would have been required if the 2015 Regulations had been in force at the time the substance was present
the quantity of substance present on or after 1 June 2015 does not exceed the maximum quantity which was present at the site at any time during the 12 month period prior to 1 June 2015.

C21. Regulation 63 (notification of other establishments) requires the person in control of the land relying on this exemption to give written notice to the planning authority containing:

details of the person in control of the land;
details of the location of the land;
the maximum amount of any hazardous substance which is subject to the exemption which was held at the site in the 12 months prior to 1 June.

C22. The purpose of the notification requirement is to ensure that decisions on applications for planning permission for development in the vicinity of establishments with hazardous substances take into account the presence of such establishments. The planning authority needs to know where hazardous substances, which would require hazardous substances consent in the absence of this exemption, are present. Regulation 63 also requires the planning authority to pass a copy of the notice to HSE or ONR, as appropriate, and to SEPA, which may result in a consultation distance being created for the site.

C23. A copy of the notification of the use of this exemption is required to go on the hazardous substances consents register (regulation 41(7)).

Presence of Small Quantities of Substances (“2% Rule”)

C24. Small quantities of a hazardous substance may be disregarded when calculating the quantity of hazardous substances present at a site. Amounts not exceeding 2% of the relevant controlled quantity of a substance may be disregarded if their location at the site is such that they cannot act as an initiator of a major accident elsewhere on the site. The responsibility for determining whether such small quantities of hazardous substances are in a location which cannot act as an initiator of a major accident elsewhere on a site is, in the first instance, one for the site operator. Site operators are reminded of their responsibilities under the Management of Health and Safety at Work Regulations 1999 (SI 1999/ 3242), which requires risk assessments to be made of the danger arising from the presence of these substances at the site and for the assessments to be submitted to HSE. Site visits by HSE inspectors should ensure the exemption is not being abused.

Minor Changes to Types and Quantities of Substances

C25. The Directive requires that there should be controls on changes in the nature or quantity of hazardous substances held which could have significant consequences for major accident hazards, or could result in a lower-tier establishment becoming an upper-tier establishment or vice versa. In those circumstances there is an exemption for changes which are not significant.

C26. Paragraphs 16 and 17 of Schedule 2 set out the exemption and the conditions which must be complied with. The exemption only applies if details of the proposed change (including details of how hazardous substances are to be kept and used as a result of that change) are sent to the planning authority by HSE or ONR and SEPA, along with confirmation that the change does not represent a “safety hazard change” and will not result in the establishment changing from upper tier[4] to lower tier or vice versa. In addition, the hazardous substances in question must be kept and used in accordance with the submitted details. Implicit in this is that the site operator has furnished HSE or ONR, as appropriate, and SEPA with details of the proposed change.

C27. Details of minor modifications sent to planning authorities by HSE/ ONR and SEPA should be recorded on the hazardous substances register (regulation 41(8)(b)).

C28. A “safety hazard change” in this context is a change to an area notified to the planning authority by HSE or ONR for the purposes of consultation on planning applications under the DMR (also known as consultation distances). Minor modifications could be made unless and until the cumulative effect of these represented a “safety hazard change” or a change in tier.

C29. The hazardous substances consent itself is not amended.

Emergencies

C30. Section 26 of the Principal Act gives Scottish Ministers a power to suspend the need for hazardous substances consent in cases of emergency. Where it is considered necessary for the provision of essential services or commodities for a hazardous substance to be present on, over or under land Scottish Ministers may make a direction that the presence of that substance does not constitute a contravention of hazardous substances control. Such a direction, which may be subject to conditions or exceptions, will be valid for a maximum of three months but may be withdrawn at any time, or renewed. The HSE or ONR and SEPA will normally be consulted before these powers are used.

The Hazardous Substances Consent Process in Scotland

Pre-application Discussions

D1. Prospective applicants are encouraged to engage with planning authorities and statutory consultees, in particular HSE or ONR, as appropriate, and SEPA , prior to making applications for hazardous substances consent. Likewise planning authorities, SEPA, HSE and ONR are encouraged to respond helpfully to such approaches. The aim is to identify and possibly resolve potential issues early in the process and to try to ensure all the necessary information is submitted with a hazardous substances consent application.

The Content of an Application

D2. There are three basic types of hazardous substances applications:

Applications for hazardous substances consent (regulation 6);
Applications for removal of conditions (regulation 7); and
Applications for continuation of hazardous substances consent (regulation 8)

D3. Regulation 7 applies where a hazardous substances consent is in place but the site operator wants a change in the conditions (e.g. alteration or removal of conditions) attached to that consent (section 11 of the Principal Act). If the planning authority thinks that no conditions should be imposed, or that different conditions should be imposed, it must grant a new unconditional consent or a consent with revised conditions. However, the authority’s consideration is limited (section 11(2)) to the issue of whether there should be conditions or whether different conditions should apply – it cannot overturn the original decision to grant consent.

D4. Such applications may be made either before or after the original consent is relied on. For example, consent may have been given subject to a condition restricting the storage of a substance to a particular location, and it may be desired later on to re-locate the substance; or a condition may require the removal of a substance by a certain date and the applicant may subsequently have good reasons for continuing to use that substance after that date.

D5. Where the planning authority decides that the conditions attached to the consent should not be changed, the application must be refused, and the original consent remains.

D6. These provisions apply to the standard conditions attached to a deemed consent[5] as well as to conditions attached to a consent specifically granted by a planning authority. So, if a site operator wishes to secure a change to a deemed consent condition, for instance to enable variation or removal of a restriction on the manner in which or the location where a substance may be present, the application should be made under regulation 7.

D7. Where there is consent for more than one substance the planning authority may have regard to a condition relating to a substance to which the application does not relate only to the extent that it has implications for a substance to which the application does relate (section 11(5)). An example may be where a condition relates to the location of another substance on a site and it is desirable to ensure that the two substances are kept apart. The Principal Act makes similar provision where two or more consents have been granted in respect of the same land (section 11(6)).

D8. Regulation 8 relates to the specific situation where there is a change in control of part of the land to which an existing hazardous substances consent relates. Paragraphs D50 to D54 of this Annex contain more information on these applications. Other than on the content of applications, the main difference with these applications is that where an application under regulation 8 is not determined within the statutory period, or any extended period agreed upon in writing by the applicant and the planning authority, the application is deemed to be granted. It is important therefore that planning authorities deal with such cases timeously.

D9. Applications under regulation 6 cover all other situations where a new or replacement hazardous substances consent is required.

D10. Each regulation specifies the particular information required to be submitted as part of or accompanying a particular type of application. HSE is developing an electronic form to assist with providing the more technical aspects of the information specified in the regulations 6 to 8. This form will be available to view or download from the HSE web site (see Annex M for the link). HSE have interim forms available on their web site at the time of publication. Planning authorities may want to prepare their own forms indicating the information to be included in an application, and incorporate the HSE form on the more technical aspects of an application when it is available.

D11. Applicants should also provide a brief summary of information for use in public notices and consultations – see paragraphs D19 and D25 and Annex L.

Statutory Publicity Requirements for Applications

D12. Applicants for hazardous substances consent are required (regulation 5) to notify anyone who is an owner of the land to which the application relates (other than themselves). Specifically this applies to those who are owners at the beginning of a 21 day period ending with the day the application is submitted.

D13. The form of the notice is specified in Schedule 3.

D14. The applicant must certify that either: they were the only owner; or that they have notified all owners (other than themselves); or that they have notified such other owners as they were able to identify, but that this is not all of the owners. Where other owners are involved, the applicant must specify in the certificate the name of every person on whom notice was served and the address at and date on which it was served. Where there are other owners whom the applicant has been unable to notify, the applicant must certify that they have taken reasonable steps to ascertain the names and addresses of these parties and specify what steps they took.

D15. This certificate must accompany the application for hazardous substances consent.

D16. The planning authority is required (regulation 9) to carry out neighbour notification on premises on neighbouring land. The term ‘neighbouring land’ is defined in regulation 9, which also sets out what must go in the notice.

D17. The planning authority is required (regulation 10) to place a newspaper notice for all applications for hazardous substances consent. The form of the notice is specified in Schedule 4.

D18. Planning authorities should aim to align the dates, specified in neighbour notification and newspaper notices, by which representations on the application can be made to the authority. Such notices should not be served or appear in newspapers unless the contents of the application are available on the public register of hazardous substances consent applications (See paragraphs D47 to D49 in this Annex).

D19. It is important that these notices include sufficient information for the public and others to understand the potential land use implications (as part of the public participation requirements of the Directive), without publicising information which is security sensitive. Applicants should ensure applications include brief summaries of proposals which can be used for such publicity requirements. Only the generic categories of the substances involved should be used in such notices. See Annex L for further information.

Validation Date, Acknowledgement and Further Information

D.20 An application for hazardous substances consent is taken to have been made on the date the last of the information specified in regulations 6, 7 or 8, as appropriate, has been received by the planning authority (the ‘validation date’ – regulation 11). This date has implications for the time periods for determining applications and making appeals on the grounds of non-determination. It is the date of the receipt of the required information, not, for example, the date when the authority acknowledges that an application has been received (unless the two dates coincide). Nor is it the date when any further information beyond that required by regulations 6, 7 or 8, such as information the authority requires to be provided under regulation 13, is submitted.

D21. Where all the information required by regulation 6, 7 or 8 is received, the planning authority must send an acknowledgement to the applicant or to the agent acting on the applicant’s behalf. The acknowledgement must include information on the time periods for issuing a decision notice (See paragraph D26 to D28 of this Annex) and the applicant’s right of appeal.

D22. If the application and information falls short of the requirements of regulation 6, 7 or 8, as appropriate, the planning authority must write to the applicant/ agent identifying the missing information, documents or fee which must be submitted.

D23. As indicated, planning authorities have power to require the production of further information (regulation 13) which they consider they need to determine the application in addition to that specified in regulation 6, 7 or 8. Requests for such further information and its submission do not affect the validation date.

Consultation

D24. Regulation 14 lists bodies that must be consulted on applications, including HSE or ONR, as appropriate, and SEPA. It also reflects the wider public participation requirements of Article 15 of the Directive. Regulation 14(3) contains a requirement to consult other persons and parties, including any non-governmental organisation promoting environmental protection, known to the authority, who are affected, likely to be affected or have an interest in the proposal but who are unlikely to have seen the owner or neighbour notification or newspaper notice.

D25. Regulation 14(4) contains specific requirements as to the information to be sent to consultees in line with the Directive (see Annex L on Security and Confidentiality issues). At least 28 days must be allowed for responses.

Time Period for Determination

D26. Planning authorities have two months from the validation date in which to issue a decision notice (or notice of referral of the application to Scottish Ministers – also known as “call-in” of the application) on hazardous substances consent applications (regulation 17). This period can be extended by an agreement in writing between the applicant and the planning authority. However, no decision can be issued until after the time periods for representations and responses specified in the owner and neighbour notifications (regulations 5 and 9), newspaper notices (regulation 10) and consultation notice (regulation 14).

D27. The applicant can appeal to the Scottish Ministers on the grounds of non-determination of the application where no decision notice (regulation 18), or notice that an application has been referred to the Scottish Ministers (regulation 20), is issued within the two month period or any agreed extension. The applicant has 3 months from the date of expiry of the two month period, or agreed extension, to make such an appeal.

D28. The exception to this right of appeal is an application under regulation 8 for continuation of hazardous substances consent, where consent is deemed to be granted if no decision is issued within the 2 month period or any agreed extension.

Making a Decision

D29. Planning authorities can grant consent, grant it with conditions or refuse consent – though see paragraphs D34 to D37 on notification of applications and D50 to D54 on applications under regulation 8 for continuation of consent. Section 8 of the Principal Act provides that conditions on how a hazardous substance is to be kept or used are limited to those HSE or ONR have advised should be imposed.

D30. Where an application relates to more than one hazardous substance, different decisions can be made in relation to each substance.

D31. The role of HSE, ONR and SEPA is to advise the planning authority on the risks arising from the presence of hazardous substances. HSE and ONR have the expertise to assess the risks arising from the presence of a hazardous substance to persons in the vicinity and advise the planning authority accordingly; SEPA has the expertise to assess and advise upon the likely risks arising to the environment. However, the decision as to whether the risks associated with the presence of hazardous substances, either to persons or to the environment, are tolerable in the context of existing and potential uses of neighbouring land is one which should be made by the planning authority.

D32. Section 7 of the Principal Act refers to the need to have regard to material considerations, and lists a number of those, including the development plan and advice from the HSE or ONR. However, the list of considerations in section 7 is not exhaustive. In addition, regulation 15 provides that planning authorities must take into account representations made in relation to applications, unless the representations have subsequently been withdrawn.

D33. In view of their acknowledged expertise in assessing the risks presented by the presence of hazardous substances, any advice from SEPA, HSE or ONR that hazardous substances consent should be refused, or conditions attached to a grant of consent, should not be overridden without the most careful consideration.

Notification and Call-in of Applications to Scottish Ministers

D34. Regulation 16 requires planning authorities to notify applications for hazardous substances consent to the Scottish Ministers where the authority intends to grant consent contrary to the advice of HSE, ONR or SEPA. That is, where HSE, ONR or SEPA have advised against granting consent or have advised that conditions should be attached to a grant of consent which the authority does not intend to attach.

D35. Notification allows Scottish Ministers to consider whether there are any grounds to justify call-in of the application for their determination. The planning authority cannot grant consent unless a 28 day time period (or any extended period notified to the authority by Scottish Ministers) has elapsed or Scottish Ministers have notified the authority that they do not intend to call-in the application.

D36. Scottish Ministers have a general power under section 18 to intervene in the determination of a hazardous substances consent application and would do so only where it appears there may be some matter of genuine national interest at stake, such as a safety issue of exceptional concern. Such an application could also be called in because an associated application for planning permission had been called-in and it makes sense to consider the two together. In practice, Ministers will exercise this power very sparingly, recognising and respecting the important role of local authorities in making decisions on the future development of their areas.

D37. Where an application is called-in, the planning authority is required to give notice to the applicant in accordance with regulation 20. See Annex E on Appeals and Called-in applications.

Decision Notices

D38. Under section 7, decision notices must include a description of the land to which the consent relates, the hazardous substance or substances to which it relates and the maximum quantity of each substance permitted to be present at any one time.

D39. Regulation 18 has further requirements on what a decision notice must include, for example: the address of the site; any conditions attached to a grant of consent; the reference number given to the application by the planning authority; rights of appeal and where information on appeals can be found. There are also requirements for information on the parties consulted, the representations made, how the latter were taken into account and the reasons for the decision.

D40. On rights of appeal and information on such appeals, the decision notice should include information about the means of challenge available. In relation to regulation 18(5)(b), this is specifically the applicant’s right of appeal under section 19. Regulation 18(4)(d) relates to wider rights of appeal by any party, primarily the availability of proceeding with a petition for judicial review of the determination would need to be mentioned. In all of these scenarios the statement should also provide information about the general circumstances of application and where further information on such means of challenge and the procedures for these can be found (such as the Scottish Courts Service or through the Citizens Advice Scotland – see Annex M).

D41. Please note that the requirements on the content of decision notices vary slightly depending on the nature of the application and the decision.

D42. SEPA and, as appropriate, HSE or ONR must be sent copies of the decision notice on an application (in part this allows HSE and ONR to set consultation distances). Other parties who made written representations must be notified of the decision and of where a copy of the decision notice is available for inspection (see Annex L on Security and Confidentiality). Regulation 18 makes provision for dealing with documents which contain representations from multiple parties, such as petitions, so that it is only necessary to notify one of the parties.

Applications for Approval of Matters Specified in Conditions

D43. A hazardous substances consent may contain conditions requiring that the further consent, agreement or approval of the planning authority be obtained in relation to certain matters. There is no specified content for applications for such consent, agreement or approval, nor are they subject to publicity and consultation requirements.

D44. However, the 2015 Regulations provide that such applications must be acknowledged (regulation 12), that they can be the subject of requests for further information (regulation 13) and that a decision notice must be issued when they are determined (regulation 19). There are rights of appeal against decision on these applications (section 19 of the Principal Act)

Fees for Applications

D45. Fees for applications for hazardous substances consent are set out in regulation 55. Applications under regulation 6 for consent for a quantity of substance which is more than twice the controlled quantity for that substance attract a higher fee, as the greater off-site risks are likely to need more detailed consideration.

Applications by Planning Authorities

D46. Where a planning authority wishes to obtain a hazardous substances consent itself, the application must be made to the Scottish Ministers. Regulation 56 describes how the 2015 Regulations and the Principal Act apply to such applications. Amongst other things, requirements for neighbour notification, publicity and consultation apply.

Registers

D47. Regulation 41 lists all the information that must be kept in the register of hazardous substances consents. This includes: decisions under the various procedures, such as appeals, modification and revocation orders; and any other decisions in relation to a grant of hazardous substances consent. It also requires that the register contain information on notices on the presence of established substances (regulation 63) and notices of minor modifications (paragraph 17 of Schedule 2).

D48. It is important that registers are updated quickly with information. No publicity procedures specifying the availability of information for inspection should be initiated unless and until the information is on the public register.

D49. Hazardous substances registers should be made available for inspection on request at the planning authority’s offices, but for security reasons should not be made available online. The register may be held electronically. Security sensitive information must not be removed by visiting members of the public.

Applications to Continue a Consent after Change in Control of Part of the Land

D50. Section 15 of the Principal Act is designed to ensure that when the control of part of the land to which a consent relates is conferred on another person, a sensible arrangement is made as to the right to keep hazardous substances. Normally a hazardous substances consent will run with the land (as would a planning permission), but where there is a change in control of part of the land to which it relates the consent will be revoked unless an application for its continuation has previously been made under section 15.

D51. This provision is designed to avoid inappropriate results. For example, a site operator has a consent to keep hazardous substances at a site that includes a staff sports ground. The sports ground is at the outer perimeter of the site, well-removed from the process plant and no hazardous substances are ever present there. If the site operator sells only the sports ground it may be inappropriate that the consent should be split proportionally between the owners. In many cases the consent will impose conditions controlling the particular location within a site where the substances are to be kept or used, but that may not always be the case.

D52. Section 16(1) of the Principal Act empowers the planning authority to modify or revoke a consent which is the subject of a section 15(1) application. Where the authority does modify or revoke the consent, section 17 entitles the person who controlled the whole of the land before the change in control to be compensated for any loss or damage sustained and directly attributable to the modification or revocation. It is likely that a planning authority will at least need to modify the description of the land to which the consent relates, and modifications of conditions may be necessary. It should, however, rarely be appropriate to use these powers to impose significantly more onerous conditions on a consent or to revoke it. In a typical case, where the consent has to be modified to refer to only one part of a property that has been divided, it seems unlikely that a sensible modification will normally give rise to any claim for compensation.

D53. Although a consent or deemed consent will already have been granted in these cases, applications for continuation could give rise to issues of no less significance than applications for a new consent. The same publicity and consultations procedures as for applications for a new consent therefore apply. These applications may also be called in under section 18 of the Principal Act. See Annex E for details on rights of appeal in relation to these applications.

D54. It is important to note that where an application under regulation 8 is not determined within the statutory period, or any extended period agreed upon in writing by the applicant and the planning authority, the application is deemed to be granted. It is important therefore that planning authorities deal with such cases timeously.

D55. Scottish Ministers also have powers to direct that hazardous substances consent is deemed to be granted when authorising projects which involve hazardous substances under other consent procedures. Such a direction can specify conditions to which the grant of hazardous substances consent is subject. Section 10(1) to (2A) of the Principal Act allow for such directions to be made when Scottish Ministers:

authorise development by a local authority or statutory undertaker;
grant consent under section 36 of the Electricity Act 1989; or
make an order under section 1 of the Transport and Works (Scotland) Act 2007

D56. While there are separate application procedures for each of these types of authorisation, consent or order, regulation 23 sets out public participation requirements in such cases to ensure compliance with the Directive. Where the requirements of decision making procedures have equivalent requirements to regulation 23 which have been complied with, there is no need to carry out the requirements again. Section 10 and regulation 23 also require consultation with HSE or ONR (as appropriate) and SEPA.

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