Planning Circular 3/2015: Planning controls for hazardous substances

Introduction

1. This circular describes the implementation of the land use planning elements of European Directive 2012/18/EU (The Directive) on the control of major accident hazards involving dangerous substances. The Directive aims to prevent major accidents and limit the consequences of such accidents. The land use planning elements require the aims of the Directive to be taken into account in planning policies and decisions, including through maintaining appropriate safety distances between major hazard sites and other development and protecting areas of natural sensitivity.

2. The Directive specifies named substances and generic categories of substance along with controlled quantities. Where substances are present at or above controlled quantities, the requirements of the Directive apply. These dangerous substances are referred to as 'hazardous substances' for the purposes of domestic planning legislation.

Land Use Planning

3. 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.

4. 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. National planning policy and development plans and adopted supplementary guidance, which set the framework for decisions on such applications, must also take into account the aims of the Directive. Finally, public participation procedures are in place which also take into account requirements of the Directive in relation to public involvement in decision making, in line with the UNECE Aarhus Convention.

Previous Legislation

5. 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

6. 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 (See Annex M).

Revocations

7. This circular replaces The Scottish Office Environment Department Circulars 5/1993: Planning Control for Hazardous Substances, 11/1993; Planning Controls for Hazardous Substances - Consequential Amendments; and 16/1993: Hazardous Substances Consent - A Guide for Industry, which are now revoked. We are also taking the opportunity to withdraw Scottish Development Department Circular 13/1976: The Petroleum and Submarine Pipelines Act 1975 - Refinery Controls, as that Act was repealed some time ago.