Common frameworks: outline framework for Hazardous Substances Planning

Section 2: Proposed breakdown of policy area and framework

4. Summary of proposed approach

It is important to first note the context in which the proposed approach has been developed. Divergence is already entirely possible across the devolved administrations, however there are currently a number of restrictions on what the United Kingdom Government (UKG) and DAs can amend based on what has been set at EU level. The key restrictions are that the UKG and DAs:

i) are unable to change the definition of what an establishment is (in short, a location where dangerous substances are present in significant quantities);

ii) must not lower standards on what constitutes a dangerous substance (i.e. by removing categories of substances or individual substances from the list, or raising the threshold at which the quantity becomes significant and the establishment falls into scope of the regime);

iii) must ensure that the objectives of preventing major accidents and limiting the consequences of such accidents for human health and the environment are taken into account in their land-use policies, through controls on the siting of new establishments and new developments close to establishments;

iv) must set up appropriate consultation procedures to ensure that operators provide sufficient information on the risks arising from the establishment and that technical advice on those risks is available when decisions are taken; and

v) facilitate public involvement at various stages of decision-making on relevant applications for consent or plans and programmes.

In simplified terms, what may become possible post-Exit that is not possible now is that the UKG and devolved administrations will have the powers within a domestic context to relax requirements on the level of substances that can be held before triggering the regime and relax the process around what is required once the regime is triggered.

It is considered that whilst a framework is appropriate for the hazardous substances regime, it should be non-legislative. It is envisaged that this would be in the form of a MoU, setting out the principles of engagement between the UK government, DAs and HSE where changes to devolved legislation are concerned (see Section 6 for more details). This view is guided by the overarching principle established by JMC; that any framework should secure the proper functioning of the regime whilst at the same time respecting the devolution rights of the devolved administrations. It is also guided with reference to the priorities that JMC list as key, that any framework should be established where they are necessary to:

• enable the functioning of the UK internal market, while acknowledging policy divergence

Hazardous substances planning is not significantly different from devolved planning controls generally – it is about consenting the locations of substances with major accident hazard potential and development around those locations. As stated in section 1, establishments which store certain amounts of certain substances or developers looking to build near such establishments will be required to seek consent from a local authority. The regime is not focused on banning activities or making a substance illegal in a general sense. As a result, (and in a scenario in which the non-regression principle did not apply) the biggest potential discrepancy would be where, for example in one administration, controls were removed for a certain substance completely, where across the border, operators would need to go through the hazardous substances consenting process with their local authority to hold the substances at a site in the same quantities. Whilst any such scenario could result in a potentially damaging ‘race to the bottom’, due to the nature of the regime this would bring very limited economic benefits – relaxed hazardous substances standards would not bring a significant enough benefit to operators to influence which administration they set up business in to the point where this would distort the internal market. And as such reducing standards in this way is unlikely to be an attractive proposition (and industry has not been pushing for this up to now). It is therefore considered unlikely and, particularly in consideration with other factors, is not a strong enough argument to justify a legislative approach for this framework; but arrangements will need to be in place to manage any potential impacts on the internal market within this – or related – policy areas.

• ensure compliance with international obligations

The UK is a signatory to two international agreements relevant to the hazardous substances regime (as mentioned in section 2), the Aarhus Convention and the Convention on the Transboundary Effects of Industrial Accidents. The latter in particular cements many of the requirements of the current regime in international law, therefore any significant stripping back of the hazardous substances regime could result in a breach of international obligations. This presents limits on what the UKG can do as the party to the treaties, but also constrains the administrations. In very extreme cases the Secretary of State has step-in powers already built into Devolution settlements where there is a potential breach of international law, although we do not envisage these forming any part of the framework. A non-legislative framework would provide the appropriate forum for any policy changes to be addressed, where anything of concern can be flagged and any necessary dispute resolution measures (see section 13) can be put into place.

• ensure the UK can negotiate, enter into and implement new trade agreements and international treaties

Not applicable. Through discussions we have not identified any differences between administrations on hazardous substances that would have an impact on the UK’s ability to negotiate (etc.) trade agreements and treaties. Negotiation of any new trade agreements or treaties would in any event need to take account of where devolved competence means there are or could be divergence across the UK in matters pertinent to that particular treaty or agreement.

• enable the management of common resources

HSE/HSE NI – as indicated, they operate across the different planning jurisdictions (HSE NI covering Northern Ireland), and so any divergence could affect them, and so any framework encouraging and providing a forum for discussion would be beneficial. However, potential changes to the regime with significant impacts on HSE are already a potential feature of the existing regime within the EU framework and are not triggered by EU exit. There is not a new significant issue being created on this point that would need to be addressed by legislative means.

• administer and provide access to justice in cases with a cross-border element

Not applicable. Any differences between administrations on hazardous substances will not have an impact on the UK’s ability to administer or provide access to justice.

• safeguard the security of the UK

Differing hazardous substances planning controls in parts of the UK are already a possibility, i.e. not affected by EU Exit, and these differences do not pose a threat to UK security.

Reducing protections below current levels could become possible after Exit, which could increase the risk to safety within an area (acknowledging the limited risk of cross-border impacts) e.g. by allowing hazardous substances near a sensitive development (to note, safety measures within establishments would still be regulated through non-planning requirements under the Control of Major Accidents Hazards Regulations 2015 or their equivalent). As stated previously, hazardous substances powers are broadly analogous to other devolved planning powers in this regard and as such should be seen as a matter for individual administrations – divergence in and of itself does not pose a risk to the security of the UK as a whole.

According to the JMC principles a legislative framework should be considered only where absolutely necessary. As set out above a potential legislative framework for hazardous substances would not meet this criteria. According to the principles set out by the JMC and the objective of securing the proper functioning of the hazardous substances regime whilst at the same time respecting the devolution rights of the devolved administrations, this Common Framework will not be a legislative vehicle but rather a reflection of the discussions that have taken place and agreements reached on ways of working going forward, post the UK’s departure from the European Union.

Other factors supporting a non-legislative agreement

• the devolved regimes predate the current version of the Directive, and in certain cases go further than its minimum requirements; this demonstrates the lack of appetite to legislate below its minimum standards.
• the HSE, and in Northern Ireland HSE NI, have a cross-cutting role which provides a common evidence base which all DAs look to; with policy development across all administrations driven by HSE and HSE(NI) advice, differing approaches would be unlikely.

Current potential for divergence – decision making is devolved, so as long as the aims of the Directive are taken into account, it should be emphasised that despite the scope for such divergence, very little of it has occurred. It should also be noted that planning authorities and Ministers in the various home nations are free to make decisions on applications as they see fit, provided the major accident hazard potential forms part of the consideration.

5. Detailed overview of proposed framework: legislation (primary or secondary)

Not applicable – no legislation is considered to be necessary

6. Detailed overview of proposed framework: non-legislative arrangements

The UKG and the DAs have agreed a set of eight principles for future ways of working that would make up the agreement:

i. In the absence of EU requirements applying to the UK, the nations of the UK will consider the evidence and advice of the Control of Major Accidents Hazards (COMAH) competent authority, as appropriate, as regards the substances and quantities to which hazardous substances consent should apply;

ii. Administrations will respect the ability of other administrations to make decisions (i.e. allowing for policy divergence).

iii. Administrations will consider the impact of decisions on other administrations, including any impacts on cross-cutting issues such as the UK Internal Market;

iv. Wherever it is considered reasonably possible, administrations agree to seek to inform other administrations of prospective changes in policy one month, or as close to one month as is practical, before making them public;

v. Parties will create the right conditions for collaboration, by for example ensuring policy leads attend future meetings;

vi. Future collaborative meetings will be conducted at official level and on a without prejudice basis;

vii. In order to broaden the debate at future collaborative meetings, parties will ensure that different perspectives are present; and

viii. Those attending future collaborative meetings recognise the importance of how collaboration is approached.

7. Detailed overview of areas where no further action is thought to be needed

Not applicable.