Common frameworks: outline framework for Hazardous Substances Planning

Draft Framework Agreement

Outline

Section 1: What we are talking about

1. Policy area

Hazardous Substances Planning. Encompasses the elements of the Seveso III Directive (2012/18/EU) which relate to land-use planning, including: planning controls on the presence of hazardous substances and handling development proposals both for hazardous establishments and in the vicinity of such establishments.

The Seveso III Directive (‘the Directive’) has the objective of preventing on-shore major accidents involving hazardous substances, as well as limiting the consequences to people and/or the environment of any accidents that do take place. ‘Hazardous substances’ in the legislation include individual substances (such as ammonium nitrate), or whole categories of substances (such as flammable gases). The Ministry of Housing, Communities and Local Government (MHCLG) and devolved administrations (DAs) are responsible for the land-use planning (LUP) requirements of the Directive. In accordance with the retained Seveso III Directive, the UK is obliged to ensure that the objectives of preventing major accidents and limiting the consequences of such accidents are taken into account in land-use policies. This requires controls on the siting of new establishments and modifications to establishments which fall within scope of the Directive, and on new developments and public areas in the vicinity of such establishments. It also requires these considerations to form the development of relevant policy and has requirements on public involvement in decision making, including relevant plans and programmes.

When implementing the original EU Directive in this regard, a distinction was made between those elements relating to on-site controls for establishments to minimise the risk of a major accident (those now covered by the Control of Major Accident Hazards Regulations 2015 (GB) and their Northern Ireland equivalent) and the residual off-site risk. The latter is primarily the risk of a major accident arising due to the proximity of hazardous substances to other development or sensitive environments (i.e. if there were an accident due to on-site failures, what the risks would be where certain developments or habitats are or would be close by). This latter issue was considered to be a spatial planning matter to be addressed through planning controls. Subsequently, LUP matters generally in the UK were devolved to the new administrations.

To summarise, very broadly the hazardous substances regime:

a) sets limits on the amount of dangerous substances that can be stored/used in an establishment before that establishment must apply for consent to do so from their local planning authority (usually the local authority);

b) requires the preparation of planning policies to take into account the aims and objectives of the Directive; and

c) requires local planning authorities to comply with various consultation requirements and consider any major accident hazard issues before they can grant planning permission in relation to establishments, to certain types of development near such establishments, and hazardous substances consent.

To note the hazardous substances regime does NOT ban any substance, or any development around establishments containing hazardous substances. All decisions rest with local planning authorities, or in some cases, called-in applications or appeals, the Minister(s) in England, Wales, Northern Ireland or Scotland.

It should also be noted that LUP controls on hazardous substances existed in Great Britain for around a decade before becoming an EU requirement. This is an issue on which the UK has led the way.

*This is subject to the terms on which the UK leaves. The Withdrawal Agreement includes a commitment, if the backstop comes into effect, to a principle of non-regression from the standards applicable within the UK at the end of transition period. This will include in areas relating to ‘the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release and disposal of chemical substances’.

• The primary focus of this agreement is to maintain the principles and objectives of retained EU legislation across the hazardous substances regime, that is, primarily, to prevent on-shore major accidents involving hazardous substances and limit the consequences to people and/or the environment of any accidents that do take place. It also seeks to, wherever possible, facilitate the sharing of information on a multilateral basis.
• Post Exit, the UK will still be party to the following relevant international agreements;
  • The Convention on the Transboundary Effects of Industrial Accidents is a UNECE convention designed to protect people and the environment from the consequences of industrial accidents. Parties are required to, amongst other things, take appropriate measures and cooperate within the framework of this Convention, to protect human beings and the environment against industrial accidents…shall ensure that the operator is obliged to take all measures necessary for the safe performance of the hazardous activity and for the prevention of industrial accidents…take measures, as appropriate, to identify hazardous activities within its jurisdiction and to ensure that affected Parties are notified of any such proposed or existing activity. The Convention also sets out detailed requirements when it comes to siting of/around hazardous establishments as well as setting out the types and quantities of substances that should be considered hazardous.
  • The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention') establishes a number of rights of the public (individuals and their associations) with regard to the environment. The Parties to the Convention are required to make the provisions necessary so that public authorities (at national, regional or local level) will contribute to these rights to become effective.
• The scope of this Common Framework is any legislation which applies the LUP elements of the retained Seveso III Directive in the United Kingdom. At the time of writing The Planning (Hazardous Substances) Act 1990 and Planning (Hazardous Substances) Regulations 2015 in England, and devolved administrations’ equivalent primary and secondary provisions, constitute the main body of legislation that applies these elements of the Seveso III Directive. The Directive’s minimum requirements are common across England, Scotland, Wales and Northern Ireland. Whilst the different administrations are currently free to use their devolved planning powers to increase controls beyond the minimum requirements of the Directive, this has not happened.
• Once the UK leaves the EU this set of common minimum requirements may* cease to be in effect and the different administrations will have wider scope to use their planning powers to make changes.

3. Definitions

All technical definitions used in this agreement will reflect those set out in legislation implementing the retained Seveso III Directive.

In this framework the following definitions are also used:

• JMC. The Joint Ministerial Committee is a set of committees that comprises ministers from the UK and devolved governments, providing central co-ordination of the overall relationship between the UK and the devolved nations.
• HSE & HSE NI. The Health and Safety Executive and Health and Safety Executive Northern Ireland are government agencies responsible for the encouragement, regulation and enforcement of health and safety.
• MoU – Memorandum of Understanding. This is a multilateral agreement which indicates a common line of action. It is often used where a legal commitment would not be required or appropriate.