Planning Circular 3/2015: Planning controls for hazardous substances

Annex F - Planning Permission and Major Accident Hazards

Introduction

F1. While the planning hazardous substances consent regime covers the presence of hazardous substances and modifications to the presence of such substances, there are also requirements for planning permission for development in relation to establishments and modifications to establishments. The main role of the procedures for applications for planning permission with regard to hazardous substances is to consider the risks of siting other development in the vicinity of an establishment (but see paragraphs F46 to F48 below).

F2. This Annex considers:

• the particular and additional requirements on consultation and public participation in these cases (note especially the cross cutting requirements of regulation 23);
• the roles of certain consultees;
• some related statutory arrangements in relation to pipelines and explosives and administrative arrangement in relation to the potential for radiation emergencies at nuclear sites;
• deciding applications;
• appeals and local reviews; and
• dealing with related applications for hazardous substances consent and planning permission.

Publicity and Consultation Requirements for Planning Applications under the DMR

F3. The DMR have some specific requirements in relation to applications for development of, or in the vicinity of, establishments. These requirements must be considered alongside those of regulation 23, as set out below.

Publicity

F4. Regulations 20(1) and (2)(e) of the DMR contains requirements to advertise applications for planning permission for development described in paragraphs 3, 3A or 4 of Schedule 5 to the DMR. Regulation 20A of the DMR contains specific adjustments to the public notice for such applications in order to comply with the Directive.

F5. Where a notice under regulations 20(1) and (2)(e) of the DMR is required, there is no need to publish a notice under regulations 20(1) and (2(a) to (d). Where notice is required under Regulation 20(1) and (2)(e) of the DMR, the exemption in regulation 20(4), where notice is required under the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, does not apply.

Consultation

F6. Regulation 25 and paragraphs 3, 3A and 4 of Schedule 5 to the DMR require the planning authority to consult:

Para 3 HSE where the development is within an area which has been notified to the planning authority by HSE for the purpose of paragraph 3 of Schedule 5 because of the presence within the vicinity of toxic, highly reactive, explosive or inflammable substances (otherwise than on a relevant nuclear site) and which involves the provision of-

(a) residential accommodation;

(b) more than 250 square metres of retail floor space;

(c) more than 500 square metres of office floor space; or

(d) more than 750 square metres of floor space to be used for an industrial process, or which is otherwise likely to result in a material increase in the number of persons working within or visiting the notified area.

Para 3A ONR for development described in 'Para 3' where the development is within an area which has been notified to the planning authority by ONR because of the presence within the vicinity of toxic, highly reactive, explosive or inflammable substances on a relevant nuclear site.

Para 4 Scottish Natural Heritage, HSE and SEPA are to be consulted where development-

(a) involves the siting of new establishments;

(b) consists of modifications to existing establishments which could have significant repercussions on major accident hazards^[9]; or

(c) includes transport routes, locations of public use and residential areas in the vicinity of an establishment, where the siting or development may be the source of or increase the risk or consequences of a major accident, and, in relation to development falling with Para 4(c), any person who is, according to the hazardous substances consent register, the person who is in control of the land on which the establishment is located.

F7. Terms used in 'Para 4' of Schedule 5 to the DMR, set out above, which are also in the Directive have the same meaning in 'Para 4' as they have in the Directive, e.g. 'establishment' and 'major accident'.

F8. As with hazardous substances consent (see paragraph D1), the Scottish Government is keen to encourage pre-application discussions on applications for planning permission. With regard to considerations around the major accident hazard impacts associated with development of or near establishments, the focus is on the views of HSE or ONR, as appropriate, and SEPA (see paragraphs F15 to F16 and F24 to F30). See Annex M for links and contact details as regards pre-application advice and discussions.

Public Participation - Regulation 23 (Other planning approvals for projects)

F9. Regulation 23 contains generic requirements on public participation in order to implement the Directive. It applies to various mechanisms for granting planning permission (including planning permission in principle), in particular applications for planning permission and related local reviews and appeals processed under, respectively, the DMR, the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2013 (The Local Review Regulations) and the Town and Country Planning (Appeals) (Scotland) Regulations 2013 (the Planning Appeals Regulations).

F10. Regulation 23 applies where development would fall within the descriptions in paragraphs 3, 3A or 4 of Schedule 5 to the DMR, that is cases which require consultation with HSE or ONR, as appropriate, and/or SEPA and Scottish Natural Heritage because of major accident hazard potential. Its requirements relate to various public notices inviting comments on proposals, consultation with certain parties, making information publicly available, taking views into account in decision making and making information on the decision itself publicly available.

F11. 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^[10]. For example, the DMR have a number of specific requirements which would meet some of the requirements of regulation 23, but not all; so to the extent steps taken under the DMR meet regulation 23 requirements they need not be repeated.

F12. As well as applications for planning permission and related appeals and local reviews mentioned above, regulation 23 also applies where planning permission may be granted through other procedures in relation to:

• Urgent Crown development (section 242A of the Planning Act);
• Purchase notices (section 92(2)(a) and (3) of the Planning Act);
• Government authorisation of projects (section 57(1) to (2B) of the Planning Act; and
• Listed building purchase notices (Section 31(5) of the Listed Buildings Act).

F13. It also applies to the making of:

• Special development orders (section 30(2) of the Planning Act);
• Simplified planning zone schemes (section 50 of the Planning Act);
• Enterprise zones designation orders (section 179 etc. under the Local Government , Planning and Land Act 1980); and
• Discontinuance orders (section 71 of and paragraph 1 of Schedule 8 to the Planning Act).

F14. Again, with regard to these other mechanisms, regulation 23 applies where planning permission is being granted in relation to development which falls within the descriptions in paragraphs 3, 3A or 4 in Schedule 5 to the DMR.

The Role of HSE

F15. HSE provide planning authorities with advice on the nature and severity of the risks presented by major hazards to people in the surrounding area. In this way, any risks can be given due weight and balanced against other relevant planning considerations by planning authorities in making planning decisions.

F16. HSE provides a pre-application advice service for developers, through its agency, the Health and Safety Laboratory, and charges for some elements of the advice that is provided. Further information about HSE's land-use planning pre-application advice, the different options and associated pricing structure, and how to access this service, can be found on its web site (See Annex M).

Consultation Distances ("the area which has been notified to the planning authority")

F17. HSE will establish a consultation distance around sites that represent a potential major accident hazard - the "area which has been notified" referred to in paragraphs 3 and 3A of Schedule 5 to the DMR (see paragraph F6). In practice, this will cover all establishments subject to the COMAH Regulations; sites subject to the 2015 Regulations; and pipelines notified to HSE under the Pipelines Safety Regulations 1996. Distances must also be notified in relation to sites licensed under the Explosives Regulations 2014 (ER 2014) and the Dangerous Substances in Harbour Areas Regulations 1987, when licenses are granted or varied in a way that affects the required separation distance which needs to be maintained (See paragraphs F32 to F34). The consultation distance is the limit of the area where HSE considers there to be a significant off-site risk to people.

F18. HSE will keep the consultation distances under review and will inform the planning authority if changes are appropriate. Similarly, the planning authority should liaise with HSE if it becomes aware of changed circumstances that might affect the consultation zone.

F19. The existence and calculation of consultation distances relies on planning authorities complying with regulations 18 and 63 as regards sending to HSE copies, respectively, of decision notices and notifications of exemptions for established substances.

F20. With the introduction of an exemption for established substances (see paragraphs C19 to C23 of Annex C), there may be a period when no consultation distance is in place for establishments using this exemption. However, as well as the specific requirement to consult HSE on proposals within consultation distances under paragraph 3 of Schedule 5 to the DMR, there is also the additional requirement to consult them, and other bodies, under paragraph 4 of that Schedule. Regulation 63 requires site operators using this exemption to inform the planning authority.

HSE Advice

F21. For each type of development HSE's advice to planning authorities will take account of the maximum quantity of a hazardous substance permitted by a hazardous substances consent and any conditions attached to it. Site operators should consider this when applying for hazardous substances consent and planning authorities when deciding whether to grant consent.

F22. With regard to any development likely to result in a material increase in the number of persons working within or visiting the notified area, particular regard should be had to developments involving the most vulnerable sections of the community, such as the very young, the sick or the elderly; hotels and other developments where people may be unfamiliar with their surroundings; and leisure and recreational developments which may result in a large number of people congregating in one place.

F23. Further information on HSE's policy on advising on development proposals in the vicinity of establishments and on the operation of on-line mechanisms for consulting HSE can be found on its website (See Annex M).

The Role of ONR and Nuclear Installations

F24. There are two sets of arrangements in relation to consulting ONR on development near nuclear sites: firstly, statutory provision in relation to major accident hazards arising from the presence of hazardous substances at relevant nuclear sites; secondly, administrative arrangement in relation to certain radiation emergencies from nuclear sites more generally.

F25. ONR has a similar role to HSE in relation to potential major accident hazards arising from hazardous substances at relevant nuclear sites. Like HSE they will notify consultation distances around such sites, must be consulted in accordance with paragraph 3A of Schedule 5 to the DMR and need to be sent relevant decision notices and notifications of exemption for established substances under regulations 18 and 63 respectively.

F26. In practice, especially given the exemptions in relation to military establishments and nuclear sites in Schedule 2 to the 2015 Regulations, not every relevant nuclear site will have a consultation distance requiring consultation under paragraph 3A of the DMR, or such a consultation distance may not extend beyond the boundary of the relevant nuclear site.

F27. ONR have also put in place administrative arrangements which continue to apply for development management advice from ONR on those nuclear sites (i.e. not just relevant nuclear sites) where a radiation emergency is reasonably foreseeable under the Radiation (Emergency Preparedness and Public Information) Regulations 2001 (SI 2001/ 2975). ONR provides all planning authorities with details of 'nuclear safeguarding' (consultation) zones, and related consultation criteria for the nuclear installation within their planning area. In these cases, ONR's planning advice will take into account the nature of development (commercial, industrial or residential), the size in terms of the population involved, and proximity to the nuclear installation. The above constraints are intended to ensure that residential, industrial and commercial developments are so controlled in an attempt to preserve and maintain the general characteristics of the site similar to those that existed at the time of licensing throughout the entire life cycle of the nuclear installation.

F28. A relevant nuclear site could have either a consultation distance in relation to hazardous substances consented on site or a consultation zone for radiation emergencies, or both or neither.

F29. Further information on ONR's role in relation to land use planning can be found on its website (see Annex M).

SEPA and SNH

F30. SEPA is the main source of advice on risks to the environment, however SNH may also have views on the implications of development which may contribute to major accident hazards and their effects on the environment. Neither of these organisations currently uses a formal system of consultation distances to trigger consultation regarding development of or near establishments.

Consultation - Pipelines

F31. Where it is proposed to construct a pipeline that will carry a dangerous fluid as defined in schedule 2 of the Pipelines Safety Regulations 1996 (SI 1996/ 825), the planning authority should consult HSE. Where dangerous fluids will be present in a pipeline, HSE will again establish a consultation distance and notify it to the planning authority.

Consultation - Licensed Explosives Facilities

F32. Explosives present at sites controlled in certain circumstances^[11] by licences issued by HSE or ONR in accordance with ER2014, or at ports controlled by licences issued by HSE under the Dangerous Substances in Harbour Areas Regulations 1987, are not subject to hazardous substances consent requirements. This is because HSE and ONR issued licenses are based on suitable separation distances, for the types and quantities of explosives present, being in place prior to the granting of the licence. The existence of a licence does not of itself prevent development within the separation distances, however where such development does take place the licence for the site will be reviewed and the type and/ or quantity of explosives may be amended to ensure that appropriate separation is maintained. This review may impact on the ongoing viability of operations on the explosives site. Licensees are usually alert to any development which occurs or is proposed in the vicinity of their site and which may impact on their operations.

F33. Applications for development within the separation distances notified to planning authorities in relation to these licensed explosives sites need to be the subject of consultation with HSE or ONR as appropriate on the same basis as the requirements in paragraphs 3, 3A and 4 of Schedule 5 of the DMR.

F34. Licensees who are licensed under the Explosive Regulations 2014 are required to notify the planning authority of the relevant consultation distances around the explosives site within 28 days of licence being granted or varied in a way which affects the separation distances that need to be maintained. Similar notification requirements are required where sites are licensed under the Dangerous Substances in Harbour Areas Regulations 1987. The plans specifying these distances will have three lines; Purple, Yellow and Green. The purple line defines the extent of the consultation distance; Band 3 lies between the purple and yellow lines; Band 2 between the yellow and green lines; Band 1 between the green line and the boundary of the explosive building or berth. Planning authorities should use the HSE's planning advice web app to obtain initial advice - see Annex M for link.

F35. Explosives present at sites licensed by local authorities under the ER 2014 are subject to the hazardous substances consent requirements. It is unlikely that the amount of explosives present at these sites will be at or above the controlled quantity for explosive substances, and the presence of these substances on their own should not normally require a hazardous substances consent. However, if they are present with other hazardous substances it is possible there will be a need for a hazardous substances consent.

Determining the Planning Application

F36. In view of their acknowledged expertise in assessing the risks presented by the use of hazardous substances, any advice from HSE or ONR and SEPA that planning permission should be refused for development at or near to a hazardous installation or pipeline, or conditions attached to a grant of consent, should not be overridden without the most careful consideration.

Notification to Scottish Ministers

F37. Where a planning authority is minded to grant planning permission to a proposal against the advice of HSE it is required by the terms of the Town and Country Planning (Notification of Applications) (Scotland) Direction 2009^[12] (included in Circular 3/2009), to notify the planning application to Scottish Ministers. Once notified, Scottish Ministers will seek the views of HSE on whether or not the application should be called in. It will then be for Scottish Ministers to decide whether the planning application should be called in for their determination or cleared back to the planning authority for them to deal with. The terms of the Notification Direction also apply where a planning authority wishes to grant planning permission as a result of a local review.

F38. At the time of publication of this circular the notification direction does not apply to situations where the planning authority intends to grant planning permission contrary to advice from ONR or SEPA regarding development of or near hazardous installations. Planning authorities should inform these bodies prior to a decision being issued of their intention to grant permission contrary to their advice.

F39. Scottish Ministers have a general power to intervene in the determination of a planning 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. 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.

F40. HSE and ONR will normally consider their roles to be discharged when satisfied that the planning authority is acting in full understanding of the advice received and the consequences that could follow. They will consider recommending call-in action only in cases of exceptional concern or where important policy or safety issues are at stake.

Decision notice

F41. Regulation 28 of the DMR requires planning authorities to give notice of their decision on an application for planning permission to those who made representations on that application. This is of particular importance as regards giving notice to HSE, ONR and/or SEPA where they have been consulted on development involving or in the vicinity of establishments.

Planning Permission Appeals and Local Reviews

F42. Unlike appeals in relation to hazardous substances consent, local reviews and appeals in relation to planning permission do not have a right for the applicant or planning authority to require to appear before and be heard by a person appointed by the Scottish Ministers. The nature of the further processing of such a local review or appeal (i.e. written submissions, hearings, site inspection or, in the case of an appeal, inquiry sessions, or some combination of these) will be a matter for the body or person conducting the review or appeal.

Local Review Bodies

F43. Where an applicant seeks a local review of the planning officer's delegated decision on a planning application for a local development, the case will be dealt with under the Local Review Regulations (see also paragraphs F9 to F14 on regulation 23). Where HSE, ONR, SEPA or SNH have made representations on an application, and have not withdrawn these, they will be an "interested party" in the case and the local review body will give them notice of any local review case.

F44. Where a local review body wishes to grant planning permission contrary to the views of HSE then the Town and Country Planning (Notification of Applications) (Scotland) Direction 2009 will apply. Cases should be notified as appropriate to the Scottish Minister who will decide whether to call-in the case or clear it back to the planning authority.

Appeals to Scottish Ministers

F45. Where applications for major or national development are involved, or a local development where the application is not delegated to an officer for a decision, the local review procedures do not apply, and the applicant can appeal to the Scottish Ministers against the decision of the planning authority. Such an appeal will be dealt with under the Planning Appeals Regulations (see also paragraphs F9 to F14 on regulation 23). All the documents which were before the planning authority and which it took into account in reaching a decision, including relevant responses from HSE, ONR, SEPA or SNH, must be included in the planning authority's response to notice of the appeal. Where any of these bodies have made representations and have not withdrawn these, then they will be an interested party to the appeal and notified of it by the planning authority.

Planning Permission for Hazardous Development

F46. The requirement for hazardous substances consent does not override the need for planning permission to be obtained where development of land is also involved. This may arise, for instance, where it is proposed to erect buildings for the storage or processing of hazardous substances. Where both planning permission and hazardous substances consent are required, two separate applications will be necessary and the respective statutory requirements must be followed. It may not be possible, or practicable, to act upon one authorisation without having obtained the other. Developers and planning authorities will, so far as is possible, wish to ensure that related applications for hazardous substances consent and for planning permission are dealt with together. This will help ensure speedier resolution of the applications and will avoid unnecessary duplication in providing information.

F47. This does not necessarily mean that similar decisions need be given on both applications, as there may be considerations which are material to one application but not to the other. For example, an authority may decide, having considered the potential risks to the local community arising from the proposed presence of a hazardous substance, that there is no good reason for withholding consent. But in their role as planning authority they may consider that planning permission should be refused for associated development because of a wider planning consideration e.g., the adverse effect of a proposed building on amenity, or inadequate access arrangements. In such circumstances, it would be perfectly proper for contrasting decisions to be made on the different applications.

F48. Planning authorities will however wish to ensure that any such related decisions are not mutually inconsistent, such as could arise from the imposition of conditions containing conflicting requirements. Furthermore, even where planning permission conditions do not actually conflict with hazardous substances consent conditions, differences in the detailed requirements may cause confusion. So far as possible, it will generally be desirable and appropriate for detailed control over the manner in which a hazardous substance is to be kept or used to be regulated by hazardous substances consent conditions.

Key Points on applications for planning permission:

• Despite requirements for hazardous substances consent, planning permission will still be required for development of or at an establishment.
• Particular procedures apply under the DMR and regulation 23 to applications for planning permission in these cases and for applications for development in the vicinity of establishments.
• HSE, ONR and SEPA are reliant on planning authorities passing them decisions on applications for planning permission, as well as hazardous substances consents and notification of established substances (regulations 18 and 63), to fulfil their duties on major accident hazards, including the calculation of consultation distances.
• Consultation under paragraph 4 of Schedule 5 to the DMR, which is not reliant on a consultation distance being in place, will be potentially of more significance with the introduction of an exemption for the established presence of hazardous substances.
• Given HSE, SEPA and ONR's expertise on off-site risks form hazardous substances, their advice should not be overridden without the most careful consideration.
• Requirements are in place in certain circumstances to notify applications for planning permission with major accident hazard implications to Scottish Ministers