Planning Circular 3/2015: Planning controls for hazardous substances

Annex J - Crown Land

J1. Crown immunity from the requirements of planning hazardous substances legislation was removed in 2006 by the changes made to the Principal Act by the Planning and Compulsory Purchase Act 2004 (the 2004 Act) - see in particular sections 90-94 and Schedule 5 to the 2004 Act.

J2. In line with the Directive, the 2015 Regulations contain an exemption (regulation 4, and paragraph 1 of Schedule 2) so that hazardous substances consent is not required for the presence of a hazardous substance in, on, over or under land at military establishments, installations or storage facilities.

J3. Section 30A of the Principal Act (inserted by section 90 of the 2004 Act) specifies that that Act binds the Crown, with certain exceptions: sections 6(3), 21, 25, 34 and 35(2) of the Principal Act, which relate to offences, interdicts and rights of entry. Subject to the exemption for military establishments, the Crown, like other site operators, is obliged to obtain and comply with hazardous substances consent.

J4. Sections 30B and 30C of the Principal Act (inserted by section 94 of the 2004 Act) make provision in relation to enforcement in relation to the Crown. While the offence provisions do not apply to the Crown, a planning authority could seek a declaration from the Court of Session as to the unlawfulness of any act or omission committed by the Crown. Also, the agreement of the appropriate authority^[14] is required before steps for enforcement are taken, though that does not include the serving of a hazardous substances contravention notice. To the extent that an interest in land is a Crown interest, anything which requires or is permitted to be done by or in relation to the owner of the interest in land must be done by or in relation to the appropriate authority.

J5. Section 35A of the Principal Act (inserted by Schedule 5 to the 2004 Act) relates to entry to Crown land, and again requires the permission of the appropriate authority or other person entitled to give permission.

J6. Section 15 of the Principal Act (revocation of hazardous substances consent on change in control of the land) has a new subsection (3) (inserted by Schedule 5 to the 2004 Act) which specifies this section does not apply where the change in control of the land is from one emanation of the Crown to another.

J7. There was also a transitional arrangement allowing a deemed consent to be claimed where there was an established presence of hazardous substances which as a result of the removal of Crown immunity would require consent^[15]. These deemed consents were subject to the standard conditions in Schedule 3 to the 1993 Regulations. Regulation 62 preserves these standard conditions on deemed consents despite revocation of the 1993 Regulations.

J8. The 2004 Act revoked subsections (1) and (2) of section 31 of the Principal Act (exercise of powers in relation to Crown land) and it amended subsections (3) and (5). Section 32 of the Principal Act (Application for hazardous substances consent in anticipation of disposal of Crown land) was also revoked by the 2004 Act.