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Land in United Kingdom

Land in different occupation in the Building (Scotland) Act 2003

Meaning of Land in different occupation in the context of the Building (Scotland) Act 2003: in relation to a building, means land occupied, or to be occupied, by a person other than the occupier of the land on which the building is, or is to be, situated.

Curtilage in the Building (Scotland) Act 2003

Meaning of Curtilage in the context of the Building (Scotland) Act 2003: land area within the same occupation.

Land Use Planning and Hazardous Substances in Scotland

In Scotland, land use planning aspects of the Directive are given effect through the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015 (the 2015 Regulations). These Regulations include:

  • requirements for consent for the presence of hazardous substances at or above controlled quantities (including using the addition rule);
  • procedures on making applications for such consent (including appeals);
    enforcement procedures (including enforcement appeals) for breaches of hazardous substances control;
  • amendments to the Town and Country Planning (Development Planning) (Scotland) Regulations 2008 (the DPR) regarding the preparation of development plans and adopted supplementary guidance;
  • amendments to the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 (the DMR) regarding publicity and consultation requirements for applications for planning permission for the development of sites with hazardous substances in relevant quantities (referred to as establishments) or development near such sites;
  • requirements on the preparation of national planning policy;
  • public participation requirements on applications for planning permission, related local reviews and appeals and other mechanisms for granting planning permission for development relevant to the Directive;
  • public engagement requirements on certain plans and programmes; and
  • provisions enabling and governing electronic communication of information in relation to hazardous substances applications and appeals.

There are therefore requirements to obtain a ‘hazardous substances consent’ for the presence of such substances at a site. The application procedures for such consent, and those for planning permission for development involving establishments or for certain development near establishments, aim to ensure the risks to humans and the environment are taken into account.

The 2015 Regulations revoke and replace the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 (the 1993 Regulations). Key changes include the updating of the list of hazardous substances in line with the adoption of new international standards; and new provisions on public participation in decision making. We have also updated a number of the hazardous substances consent application and appeal procedures to the planning permission application and appeal procedures.

Control of Major Accident Hazards Regulations

Much of the Directive is implemented through the Control of Major Accident Hazards Regulations 2015 (the COMAH Regulations), which apply to Great Britain as a whole. These Regulations deal with, for example, on-site safety measures, requirements for the preparation of on-site safety management systems and emergency plans and the inspection of sites. In Scotland the COMAH Regulations are enforced by a competent authority comprising the Health and Safety Executive (HSE) – or, for relevant nuclear sites, the Office of Nuclear Regulation (ONR) – and the Scottish Environment Protection Agency (SEPA) acting jointly. Guidance on the COMAH regime is available from the HSE and can also be found on their website.

Development Plans and Supplementary Guidance

In considering hazardous substances consent applications authorities must have regard to material considerations – including the relevant provisions of the development plan – (section 7(2) of the Principal Act). With planning applications for development involving or in the vicinity of establishments, decisions are required to be made in line with the development plan unless material considerations indicate otherwise (sections 25 and 37 of the Planning Act).

The DPR require strategic planning authorities and planning authorities, as appropriate, to take into account the matters listed in paragraph A3 above when preparing strategic development plans and local development plans and related main issues reports.

The requirements to take the matters set out in paragraph A3 into account also apply to the preparation of supplementary guidance which is to be adopted as part of a strategic development plan or a local development plan.

SEPA is among the key agencies specified in the DPR to engage in strategic and local development plan preparation. While HSE and ONR are not so specified, planning authorities whose area, or any part of whose area, may be affected by the presence of establishments or nuclear sites, should consult these bodies as part of their plan preparation or relevant supplementary guidance.

Plans and Programmes – Public Involvement

There are requirements (regulation 22) for ensuring public participation in the preparation, modification or review of relevant plans and programmes; that is, those relating to the siting of new establishments or modification of establishments or development in the vicinity of establishments where the siting, modification or development may increase the risk or consequences of a major accident. These requirements do not apply where the plan or programme is subject to strategic environmental assessment, which has its own public participation requirements.

Definitions

“the 1993 Regulations” The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 (SI 1993/ 323), which are replaced by the 2015 Regulations.
“the 2004 Act” The Planning and Compulsory Purchase Act 2004 (Chapter 5).
“the 2015 Regulations” The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015 (SSI 2015/181).
“Aarhus Convention” United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.
“the COMAH Regulations” The Control of Major Accident Hazard Regulations 2015 (SI 2015/ 483).
“consultation distance” A set area around an establishment notified to the planning authority by HSE or ONR, who must be consulted on applications for planning permission for certain development within their respective consultation distance. Such distances can also be notified in relation to pipelines or in relation to administrative arrangements around certain nuclear sites.
“controlled quantity” The quantity specified in Schedule 1 to the 2015 Regulations at or above which hazardous substances consent is required (subject to any relevant exemption).
“the Directive” Directive 2012/18/EU of the European Parliament and of the Council on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC (OJ L197, 24.7.2012, p.1) – also known as the Seveso III Directive[1].
“the DMR” The Town and Country Planning (Development Management Procedure (Scotland) Regulations 2013 (SSI 2013/155).
“DPEA” Scottish Government Directorate for Planning and Environmental Appeals.
“the DPR” Town and Country Planning (Development Planning) (Scotland) Regulations 2008 (SSI 2008/ 426).
“the ER 2014” The Explosives Regulations 2014 (SI 2014/ 1638)
“establishment” For the purposes of the Circular, this has the same meaning as in the Directive, but also includes sites requiring hazardous substances consent for Hydrogen, Natural Gas (including Liquefied Natural Gas) and Liquefied Petroleum Gas at lower controlled quantities under the Principal Act and the 2015 Regulations. The Directive defines establishment as “the whole location under the control of an operator where dangerous substances are present in one or more installations, including common or related infrastructures or activities; establishments are either lower-tier establishments or upper-tier establishments”. Upper-tier and lower-tier relate to some substances having two levels of control placed on them depending on the quantity present.
“established presence” Where substances were present legally without requiring hazardous substances consent prior to a change in legislation which changes the requirement for such consent. Such changes previously had transitional arrangements for established presence. The 2015 Regulations have an exemption subject to certain restrictions and requirements – see paragraph 12 of Schedule 2 to the 2015 Regulations.
“HSE” The Health and Safety Executive.
“the HSWA” The Health and Safety at Work etc. Act 1974 (Chapter 37).
“the Inquiry Session Rules” The Town and Country Planning (Hazardous Substances Inquiry Session Procedure) (Scotland) Rules) 2015 (SSI 2015/ 182).
“the Listed Buildings Act” The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (Chapter. 9).
“local review” Where applications for planning permission for local development are delegated to an officer for decision, the applicant does not have right of appeal to Scottish Ministers but to a local review of the officer’s decision by the planning authority.
“the Local Review Regulations” The Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2013 (SSI 2013/ 157).
“neighbouring land” Land (other than land forming part of a road) which, or part of which, is conterminous with or within 20 metres of the boundary of the land to which the application relates; and where storage or use of hazardous substances is to take place within a building, every other separately owned or separately occupied unit within that building. ‘Land’ includes any building on the land.
“new international standards” The ‘Globally Harmonised System’ as adopted by European Regulation (EC) No. 1272.2008 on classification, labelling and packaging of substances and mixtures.
“ONR” The Office for Nuclear Regulation.
“the Planning Act” The Town and Country Planning (Scotland) Act 1997 (Chapter 8).
“the Planning Appeals Regulations” The Town and Country Planning (Appeals) (Scotland) Regulations 2013 (SSI 2013/ 156).
“the Principal Act” The Planning (Hazardous Substances) (Scotland) Act 1997 (Chapter 10).
“relevant nuclear site” A site which is- (a) a nuclear site within the meaning given in section 112(1) of the Energy Act 2013 (Chapter 32); (b) an authorised defence site within the meaning given in regulation 2(1) of the Health and Safety (Enforcing Authority) Regulations 1998 (SI 1998/ 494); (c) a new nuclear build site (within the meaning given in regulation 2A of those 1998 Regulations).
“SEPA” The Scottish Environment Protection Agency.

Concept of Folc Land

Traditional meaning of folc land [1] in the Saxon law history: The land of the people; see BOC-LAND. Folcmote folcgemote: a popular assembly; a county court. Folc-right: the common right of the people; see 1st Book (“The Rights of Persons”), Blackstone’s Commentaries on the Laws of England 65.

Note: For more information on Saxon Law history, see here.

Resources

Notes and References

  1. Based on A concise law dictionary of words, phrases and maxims, “Folc Land”, Boston: Little, Brown, and Company, 1911, United States. This term is absolete. It is also called the Stimson’s Law dictionary, based on a glossary of terms, included Folc Land.

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  • Article Name: Land
  • Author: Patricia M. Leopold
  • Description: Land in different occupation in the Building (Scotland) Act 2003 Meaning of Land in different occupation in the context of [...]

This entry was last updated: January 6, 2020

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