Planning Circular 3/2015: Planning controls for hazardous substances

Annex C - Exemptions from Hazardous Substances Consent Requirements

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.

Key Points: Exemptions

• Planning authorities and site operators should check exemptions carefully as the terms of some may have changed over the years.
• The exemption for the established presence of substances requires site operators to notify planning authorities that the exemption is being relied on and give certain details relating to the substances present.
• The exemption for minor modifications relies on site operators passing information to HSE/ ONR and SEPA and these bodies then passing details to the planning authority indicating there is no "safety hazard change".