Planning Circular 3/2015: Planning controls for hazardous substances

Annex H - Revocation or Modification of Hazardous Substances Consent

H1. Section 12 of the Principal Act gives planning authorities the power to make an order revoking or modifying a hazardous substances consent. Scottish Ministers must confirm such an order before it can take effect. Subsection (1) gives a general power to authorities to revoke or modify a consent where they, having regard to any material consideration, consider it expedient to do so; subsection (2) sets out other circumstances in which a consent may be revoked. An important distinction is that with orders made under subsection (1) (but not orders made under subsection (2)) a person suffering damage as a result may be entitled to compensation in the circumstances described in section 14 of the Principal Act.

H2. As with planning permission, hazardous substances consent provides an entitlement that runs with the land. It may be undesirable for a hazardous substances consent which has fallen into disuse to continue to have effect; as it could restrict unnecessarily the uses to which neighbouring land can be put. Moreover, a hazardous substances consent for the presence of a substance in connection with a particular use of land may not necessarily be apt in respect of other uses. When there is a material change in the use of the land it may therefore be undesirable for a hazardous substances consent to continue to have effect.

H3. The general effect of section 12(2) of the Principal Act is that where a consent has not been relied on for 5 years, or the use of the land has changed materially since the consent was granted, the consent may be revoked without compensation being payable. The requirement in subsection (4) that an order must specify the grounds on which it is made will enable a potential claimant to know whether the revocation or modification is one in relation to which compensation may be payable.

H4. Planning authorities are encouraged to review hazardous substances consents from time to time with a view to revoking redundant ones. This can help to avoid the situation where, for example, an installation is no longer on a site, but the hazardous substances consent is in place and therefore so is the consultation distance. The consultation distance triggers consultation with HSE, whose advice on development proposals in the vicinity will be based on the fact such a hazardous substances consent is in place.

H5. Section 13 of the Principal Act sets out the procedures for the confirmation of revocation and modification orders. These are modelled on the procedures for confirming orders that revoke or modify planning permission where objections have been made to the order. Subsection (2) enables Scottish Ministers to confirm an order with or without changes. Subsection (3) requires the planning authority to serve notice of an order on any person who is an owner, occupier or lessee of the whole or any part of the land to which the order relates and any person who in their opinion will be affected by the order. Those served with the notice must be given at least 28 days in which they can require Scottish Ministers to afford them and the planning authority an opportunity of being heard before an appointed person. In effect, this provision will ensure that an opposed order will normally be considered at a public hearing or inquiry.

Key Points: Revocation and Modification Orders

• Where hazardous substances consents are still in place but not being used they can still affect advice and planning decisions.
• Planning authorities should consider revocation of such consents.
• Revocation and modification orders have compensation provisions attached.
• Such compensation is not payable where the order relates to consents for substances which have not been present for at least 5 years or where there is a material change in the use of the land for which consent was previously granted.