Planning Circular 3/2015: Planning controls for hazardous substances

Annex D - The Hazardous Substances Consent Process

Pre-application Discussions

D1. Prospective applicants are encouraged to engage with planning authorities and statutory consultees, in particular HSE or ONR, as appropriate, and SEPA , prior to making applications for hazardous substances consent. Likewise planning authorities, SEPA, HSE and ONR are encouraged to respond helpfully to such approaches. The aim is to identify and possibly resolve potential issues early in the process and to try to ensure all the necessary information is submitted with a hazardous substances consent application.

The Content of an Application

D2. There are three basic types of hazardous substances applications:

• Applications for hazardous substances consent (regulation 6);
• Applications for removal of conditions (regulation 7); and
• Applications for continuation of hazardous substances consent (regulation 8)

D3. Regulation 7 applies where a hazardous substances consent is in place but the site operator wants a change in the conditions (e.g. alteration or removal of conditions) attached to that consent (section 11 of the Principal Act). If the planning authority thinks that no conditions should be imposed, or that different conditions should be imposed, it must grant a new unconditional consent or a consent with revised conditions. However, the authority's consideration is limited (section 11(2)) to the issue of whether there should be conditions or whether different conditions should apply - it cannot overturn the original decision to grant consent.

D4. Such applications may be made either before or after the original consent is relied on. For example, consent may have been given subject to a condition restricting the storage of a substance to a particular location, and it may be desired later on to re-locate the substance; or a condition may require the removal of a substance by a certain date and the applicant may subsequently have good reasons for continuing to use that substance after that date.

D5. Where the planning authority decides that the conditions attached to the consent should not be changed, the application must be refused, and the original consent remains.

D6. These provisions apply to the standard conditions attached to a deemed consent^[5] as well as to conditions attached to a consent specifically granted by a planning authority. So, if a site operator wishes to secure a change to a deemed consent condition, for instance to enable variation or removal of a restriction on the manner in which or the location where a substance may be present, the application should be made under regulation 7.

D7. Where there is consent for more than one substance the planning authority may have regard to a condition relating to a substance to which the application does not relate only to the extent that it has implications for a substance to which the application does relate (section 11(5)). An example may be where a condition relates to the location of another substance on a site and it is desirable to ensure that the two substances are kept apart. The Principal Act makes similar provision where two or more consents have been granted in respect of the same land (section 11(6)).

D8. Regulation 8 relates to the specific situation where there is a change in control of part of the land to which an existing hazardous substances consent relates. Paragraphs D50 to D54 of this Annex contain more information on these applications. Other than on the content of applications, the main difference with these applications is that where an application under regulation 8 is not determined within the statutory period, or any extended period agreed upon in writing by the applicant and the planning authority, the application is deemed to be granted. It is important therefore that planning authorities deal with such cases timeously.

D9. Applications under regulation 6 cover all other situations where a new or replacement hazardous substances consent is required.

D10. Each regulation specifies the particular information required to be submitted as part of or accompanying a particular type of application. HSE is developing an electronic form to assist with providing the more technical aspects of the information specified in the regulations 6 to 8. This form will be available to view or download from the HSE web site (see Annex M for the link). HSE have interim forms available on their web site at the time of publication. Planning authorities may want to prepare their own forms indicating the information to be included in an application, and incorporate the HSE form on the more technical aspects of an application when it is available.

D11. Applicants should also provide a brief summary of information for use in public notices and consultations - see paragraphs D19 and D25 and Annex L.

Statutory Publicity Requirements for Applications

D12. Applicants for hazardous substances consent are required (regulation 5) to notify anyone who is an owner of the land to which the application relates (other than themselves). Specifically this applies to those who are owners at the beginning of a 21 day period ending with the day the application is submitted.

D13. The form of the notice is specified in Schedule 3.

D14. The applicant must certify that either: they were the only owner; or that they have notified all owners (other than themselves); or that they have notified such other owners as they were able to identify, but that this is not all of the owners. Where other owners are involved, the applicant must specify in the certificate the name of every person on whom notice was served and the address at and date on which it was served. Where there are other owners whom the applicant has been unable to notify, the applicant must certify that they have taken reasonable steps to ascertain the names and addresses of these parties and specify what steps they took.

D15. This certificate must accompany the application for hazardous substances consent.

D16. The planning authority is required (regulation 9) to carry out neighbour notification on premises on neighbouring land. The term 'neighbouring land' is defined in regulation 9, which also sets out what must go in the notice.

D17. The planning authority is required (regulation 10) to place a newspaper notice for all applications for hazardous substances consent. The form of the notice is specified in Schedule 4.

D18. Planning authorities should aim to align the dates, specified in neighbour notification and newspaper notices, by which representations on the application can be made to the authority. Such notices should not be served or appear in newspapers unless the contents of the application are available on the public register of hazardous substances consent applications (See paragraphs D47 to D49 in this Annex).

D19. It is important that these notices include sufficient information for the public and others to understand the potential land use implications (as part of the public participation requirements of the Directive), without publicising information which is security sensitive. Applicants should ensure applications include brief summaries of proposals which can be used for such publicity requirements. Only the generic categories of the substances involved should be used in such notices. See Annex L for further information.

Validation Date, Acknowledgement and Further Information

D.20 An application for hazardous substances consent is taken to have been made on the date the last of the information specified in regulations 6, 7 or 8, as appropriate, has been received by the planning authority (the 'validation date' - regulation 11). This date has implications for the time periods for determining applications and making appeals on the grounds of non-determination. It is the date of the receipt of the required information, not, for example, the date when the authority acknowledges that an application has been received (unless the two dates coincide). Nor is it the date when any further information beyond that required by regulations 6, 7 or 8, such as information the authority requires to be provided under regulation 13, is submitted.

D21. Where all the information required by regulation 6, 7 or 8 is received, the planning authority must send an acknowledgement to the applicant or to the agent acting on the applicant's behalf. The acknowledgement must include information on the time periods for issuing a decision notice (See paragraph D26 to D28 of this Annex) and the applicant's right of appeal.

D22. If the application and information falls short of the requirements of regulation 6, 7 or 8, as appropriate, the planning authority must write to the applicant/ agent identifying the missing information, documents or fee which must be submitted.

D23. As indicated, planning authorities have power to require the production of further information (regulation 13) which they consider they need to determine the application in addition to that specified in regulation 6, 7 or 8. Requests for such further information and its submission do not affect the validation date.

Consultation

D24. Regulation 14 lists bodies that must be consulted on applications, including HSE or ONR, as appropriate, and SEPA. It also reflects the wider public participation requirements of Article 15 of the Directive. Regulation 14(3) contains a requirement to consult other persons and parties, including any non-governmental organisation promoting environmental protection, known to the authority, who are affected, likely to be affected or have an interest in the proposal but who are unlikely to have seen the owner or neighbour notification or newspaper notice.

D25. Regulation 14(4) contains specific requirements as to the information to be sent to consultees in line with the Directive (see Annex L on Security and Confidentiality issues). At least 28 days must be allowed for responses.

Time Period for Determination

D26. Planning authorities have two months from the validation date in which to issue a decision notice (or notice of referral of the application to Scottish Ministers - also known as "call-in" of the application) on hazardous substances consent applications (regulation 17). This period can be extended by an agreement in writing between the applicant and the planning authority. However, no decision can be issued until after the time periods for representations and responses specified in the owner and neighbour notifications (regulations 5 and 9), newspaper notices (regulation 10) and consultation notice (regulation 14).

D27. The applicant can appeal to the Scottish Ministers on the grounds of non-determination of the application where no decision notice (regulation 18), or notice that an application has been referred to the Scottish Ministers (regulation 20), is issued within the two month period or any agreed extension. The applicant has 3 months from the date of expiry of the two month period, or agreed extension, to make such an appeal.

D28. The exception to this right of appeal is an application under regulation 8 for continuation of hazardous substances consent, where consent is deemed to be granted if no decision is issued within the 2 month period or any agreed extension.

Making a Decision

D29. Planning authorities can grant consent, grant it with conditions or refuse consent - though see paragraphs D34 to D37 on notification of applications and D50 to D54 on applications under regulation 8 for continuation of consent. Section 8 of the Principal Act provides that conditions on how a hazardous substance is to be kept or used are limited to those HSE or ONR have advised should be imposed.

D30. Where an application relates to more than one hazardous substance, different decisions can be made in relation to each substance.

D31. The role of HSE, ONR and SEPA is to advise the planning authority on the risks arising from the presence of hazardous substances. HSE and ONR have the expertise to assess the risks arising from the presence of a hazardous substance to persons in the vicinity and advise the planning authority accordingly; SEPA has the expertise to assess and advise upon the likely risks arising to the environment. However, the decision as to whether the risks associated with the presence of hazardous substances, either to persons or to the environment, are tolerable in the context of existing and potential uses of neighbouring land is one which should be made by the planning authority.

D32. Section 7 of the Principal Act refers to the need to have regard to material considerations, and lists a number of those, including the development plan and advice from the HSE or ONR. However, the list of considerations in section 7 is not exhaustive. In addition, regulation 15 provides that planning authorities must take into account representations made in relation to applications, unless the representations have subsequently been withdrawn.

D33. In view of their acknowledged expertise in assessing the risks presented by the presence of hazardous substances, any advice from SEPA, HSE or ONR that hazardous substances consent should be refused, or conditions attached to a grant of consent, should not be overridden without the most careful consideration.

Notification and Call-in of Applications to Scottish Ministers

D34. Regulation 16 requires planning authorities to notify applications for hazardous substances consent to the Scottish Ministers where the authority intends to grant consent contrary to the advice of HSE, ONR or SEPA. That is, where HSE, ONR or SEPA have advised against granting consent or have advised that conditions should be attached to a grant of consent which the authority does not intend to attach.

D35. Notification allows Scottish Ministers to consider whether there are any grounds to justify call-in of the application for their determination. The planning authority cannot grant consent unless a 28 day time period (or any extended period notified to the authority by Scottish Ministers) has elapsed or Scottish Ministers have notified the authority that they do not intend to call-in the application.

D36. Scottish Ministers have a general power under section 18 to intervene in the determination of a hazardous substances consent application and would do so only where it appears there may be some matter of genuine national interest at stake, such as a safety issue of exceptional concern. Such an application could also be called in because an associated application for planning permission had been called-in and it makes sense to consider the two together. In practice, Ministers will exercise this power very sparingly, recognising and respecting the important role of local authorities in making decisions on the future development of their areas.

D37. Where an application is called-in, the planning authority is required to give notice to the applicant in accordance with regulation 20. See Annex E on Appeals and Called-in applications.

Decision Notices

D38. Under section 7, decision notices must include a description of the land to which the consent relates, the hazardous substance or substances to which it relates and the maximum quantity of each substance permitted to be present at any one time.

D39. Regulation 18 has further requirements on what a decision notice must include, for example: the address of the site; any conditions attached to a grant of consent; the reference number given to the application by the planning authority; rights of appeal and where information on appeals can be found. There are also requirements for information on the parties consulted, the representations made, how the latter were taken into account and the reasons for the decision.

D40. On rights of appeal and information on such appeals, the decision notice should include information about the means of challenge available. In relation to regulation 18(5)(b), this is specifically the applicant's right of appeal under section 19. Regulation 18(4)(d) relates to wider rights of appeal by any party, primarily the availability of proceeding with a petition for judicial review of the determination would need to be mentioned. In all of these scenarios the statement should also provide information about the general circumstances of application and where further information on such means of challenge and the procedures for these can be found (such as the Scottish Courts Service or through the Citizens Advice Scotland - see Annex M).

D41. Please note that the requirements on the content of decision notices vary slightly depending on the nature of the application and the decision.

D42. SEPA and, as appropriate, HSE or ONR must be sent copies of the decision notice on an application (in part this allows HSE and ONR to set consultation distances). Other parties who made written representations must be notified of the decision and of where a copy of the decision notice is available for inspection (see Annex L on Security and Confidentiality). Regulation 18 makes provision for dealing with documents which contain representations from multiple parties, such as petitions, so that it is only necessary to notify one of the parties.

Applications for Approval of Matters Specified in Conditions

D43. A hazardous substances consent may contain conditions requiring that the further consent, agreement or approval of the planning authority be obtained in relation to certain matters. There is no specified content for applications for such consent, agreement or approval, nor are they subject to publicity and consultation requirements.

D44. However, the 2015 Regulations provide that such applications must be acknowledged (regulation 12), that they can be the subject of requests for further information (regulation 13) and that a decision notice must be issued when they are determined (regulation 19). There are rights of appeal against decision on these applications (section 19 of the Principal Act)

Fees for Applications

D45. Fees for applications for hazardous substances consent are set out in regulation 55. Applications under regulation 6 for consent for a quantity of substance which is more than twice the controlled quantity for that substance attract a higher fee, as the greater off-site risks are likely to need more detailed consideration.

Applications by Planning Authorities

D46. Where a planning authority wishes to obtain a hazardous substances consent itself, the application must be made to the Scottish Ministers. Regulation 56 describes how the 2015 Regulations and the Principal Act apply to such applications. Amongst other things, requirements for neighbour notification, publicity and consultation apply.

Registers

D47. Regulation 41 lists all the information that must be kept in the register of hazardous substances consents. This includes: decisions under the various procedures, such as appeals, modification and revocation orders; and any other decisions in relation to a grant of hazardous substances consent. It also requires that the register contain information on notices on the presence of established substances (regulation 63) and notices of minor modifications (paragraph 17 of Schedule 2).

D48. It is important that registers are updated quickly with information. No publicity procedures specifying the availability of information for inspection should be initiated unless and until the information is on the public register.

D49. Hazardous substances registers should be made available for inspection on request at the planning authority's offices, but for security reasons should not be made available online. The register may be held electronically. Security sensitive information must not be removed by visiting members of the public (see Annex L).

Applications to Continue a Consent after Change in Control of Part of the Land

D50. Section 15 of the Principal Act is designed to ensure that when the control of part of the land to which a consent relates is conferred on another person, a sensible arrangement is made as to the right to keep hazardous substances. Normally a hazardous substances consent will run with the land (as would a planning permission), but where there is a change in control of part of the land to which it relates the consent will be revoked unless an application for its continuation has previously been made under section 15.

D51. This provision is designed to avoid inappropriate results. For example, a site operator has a consent to keep hazardous substances at a site that includes a staff sports ground. The sports ground is at the outer perimeter of the site, well-removed from the process plant and no hazardous substances are ever present there. If the site operator sells only the sports ground it may be inappropriate that the consent should be split proportionally between the owners. In many cases the consent will impose conditions controlling the particular location within a site where the substances are to be kept or used, but that may not always be the case.

D52. Section 16(1) of the Principal Act empowers the planning authority to modify or revoke a consent which is the subject of a section 15(1) application. Where the authority does modify or revoke the consent, section 17 entitles the person who controlled the whole of the land before the change in control to be compensated for any loss or damage sustained and directly attributable to the modification or revocation. It is likely that a planning authority will at least need to modify the description of the land to which the consent relates, and modifications of conditions may be necessary. It should, however, rarely be appropriate to use these powers to impose significantly more onerous conditions on a consent or to revoke it. In a typical case, where the consent has to be modified to refer to only one part of a property that has been divided, it seems unlikely that a sensible modification will normally give rise to any claim for compensation.

D53. Although a consent or deemed consent will already have been granted in these cases, applications for continuation could give rise to issues of no less significance than applications for a new consent. The same publicity and consultations procedures as for applications for a new consent therefore apply. These applications may also be called in under section 18 of the Principal Act. See Annex E for details on rights of appeal in relation to these applications.

D54. It is important to note that where an application under regulation 8 is not determined within the statutory period, or any extended period agreed upon in writing by the applicant and the planning authority, the application is deemed to be granted. It is important therefore that planning authorities deal with such cases timeously.

Key points on applications for continuation of consent:

• If no application for continuation of the consent (regulation 8) is made prior to a change to the person in control of part of the land, revocation of the consent is automatic and there is no compensation payable under section 17 of the Principal Act; and
• If an application for continuation of consent is not determined within the statutory period or an agreed extension to this period, the application is deemed to be granted.

Other Procedures Granting Hazardous Substances Consent

D55. Scottish Ministers also have powers to direct that hazardous substances consent is deemed to be granted when authorising projects which involve hazardous substances under other consent procedures. Such a direction can specify conditions to which the grant of hazardous substances consent is subject. Section 10(1) to (2A) of the Principal Act allow for such directions to be made when Scottish Ministers^[6]:

• authorise development by a local authority or statutory undertaker;
• grant consent under section 36 of the Electricity Act 1989; or
• make an order under section 1 of the Transport and Works (Scotland) Act 2007

D56. While there are separate application procedures for each of these types of authorisation, consent or order, regulation 23 sets out public participation requirements in such cases to ensure compliance with the Directive. Where the requirements of decision making procedures have equivalent requirements to regulation 23 which have been complied with, there is no need to carry out the requirements again. Section 10 and regulation 23 also require consultation with HSE or ONR (as appropriate) and SEPA.

Key Points: Applications for Hazardous Substances Consent

• There are three types of applications for hazardous substances consent;
  • applications for consent;
  • applications for a replacement consent with different conditions; and
  • applications for continuation of consent where there has been a change in the person in control of part of the land.
• Where there is a change in the person in control of part of the land to which consent relates, such consent will be revoked in the absence of an application for continuation of consent.
• HSE provides a downloadable form to assist with the technical information required as part of an application.
• Procedures for processing applications are broadly similar to those for applications for planning permission, though there are differences to ensure compliance with the Directive.
• There are rights of appeal to Scottish Ministers against a planning authority's failure to determine applications for consent.
• However, a planning authority's failure to determine an application for continuation of consent results in a deemed approval.
• Given SEPA, HSE and ONR's expertise on off-site risks from hazardous substances, their advice should not be overridden without the most careful consideration.
• Requirements to notify applications to Scottish Ministers apply where the planning authority wishes to grant consent contrary to HSE, ONR or SEPA advice.