Hydrogen: planning and consenting guidance

6. Hazardous Substances Consent

6.1. Introduction and Legislative Context

The HSC controls are designed to regulate the presence of hazardous substances ensuring that they cannot be present at or above controlled quantities without obtaining consent, unless an exemption to the need for consent applies.

The relevant legislation is the Planning (Hazardous Substances) (Scotland) Act 1997 and The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015 (the “2015 Regulations”). Guidance on the legislative requirements and the consenting process can be found in the Scottish Government Planning Circular 3/2015: Planning Controls for Hazardous Substances.

If you want to store or use hazardous substances at or above defined limits at a site, you must apply for hazardous substances consent. This is a legal requirement. Hazardous substance consenting is to ensure the location is appropriate for the dangerous substance. The Control of Major Accident Hazards Regulations 2015 controls the activities once approval has been granted for the location under HSC.

The Regulations complement, but do not override or duplicate, the requirements of The Control of Major Accident Hazards Regulations 2015 regulated and enforced by the Health and Safety Executive (HSE) and Scottish Environment Protection Agency (SEPA) jointly, the Health and Safety at Work etc. Act (HSWA) 1974 or regulations made under that Act, which are enforced by the HSE.

6.2. Requirement for Consent and Controlled Quantities

HSC is required for the presence of a hazardous substance on, over or under, land unless the aggregate quantity of the substance present is less that the controlled quantity. Schedule 1 of the 2015 Regulations provides a list of the hazardous substances (Part 2) and controlled quantities (Part 1).

Hydrogen is a ‘named hazardous substance’ in Part 2 to Schedule 1 with a controlled quantity of two tonnes (as required under regulation 3(1)(b)). Substances present at or above their controlled quantity require consent, meaning that a hazardous substances consent will be required where the facility will be producing/storing an aggregate quantity of two or more tonnes of hydrogen.

A number of substances that may be involved in hydrogen production are also named hazardous substances such as methanol, oxygen, anhydrous ammonia.

It is important to note that, even where having aggregated all of a category of hazardous substances or named substance the controlled quantity has not been reached, HSC may still be required. This is determined by applying a calculation known as the ‘addition rule’, where categories of hazardous substance and named hazardous substances, with similar properties, present below their individual controlled quantities are added together. Full details of the ‘addition rule’ can be found within Planning Circular 3/2015: Planning Controls for Hazardous Substances (Annex B). This is the same as the aggregation rule for COMAH (refer to section 5).

In determining the aggregate quantity, account must also to be taken of the amount of the same substance held on, over or under land, which is controlled by the same person and which, in all the circumstances, forms a single establishment.

Note that if a HSC is required, all dangerous substances that are in either Parts 1 or 2 to Schedule 1 must be included in the HSC application, not only the dangerous substance that is above the threshold, or some of the inventory of dangerous substances that in aggregate exceed the threshold. Where relevant and forming part of the inventory of substances at a site, they must also form part of an application(s) for hazardous substances consent.

All COMAH establishments require HSC. In addition, for sites handling hydrogen, HSC is required for inventories that are below the COMAH threshold (the COMAH lower tier threshold for hydrogen is 5 tonnes, the threshold for HSC is 2 tonnes).

The transport of hazardous substances does not generally need permission but the point of loading and unloading could be affected by this consent process and it is important that this is checked with the relevant planning authority.

6.3. Application Process and Requirements

An application for HSC should be made to the planning authority in line with Part 3 of the 2015 Regulations. Detailed guidance is set out in within Planning Circular 3/2015: Planning Controls for Hazardous Substances, and Hazardous substances consent - HSE.

Types of Application

There are three basic types of hazardous substances applications:

• Applications for HSC (regulation 6);
• Applications for removal or variation of conditions attached to a previous HSC (regulation 7); and
• Applications for continuation of HSC where there has been a change in the person in control of any part of the land (regulation 8).

This guidance focuses on new applications for hazardous consent only, as would be required for proposed development of a hydrogen production facility. Full details regarding applications for the removal or amendment of conditions and applications for continuation of HSC are set out in Planning Circular 3/2015: Planning Controls for Hazardous Substances

Pre-Application Engagement

Prospective applicants are encouraged to engage with the planning authority prior to making applications for HSC. In most cases, the HSE and SEPA do not provide pre application advice regarding HSC, however, this may be included in any COMAH pre-notification discussions.

Application Form and Key Deliverables

The HSE provide a template form for HSC applications, setting out the information required. In most cases, the planning authority also provides an application form on its website.

The template form sets out the key information requirements and how these should be provided to the relevant planning authority.

Statutory Publicity Requirements for Applications

Applicants for HSC are required to notify anyone who is an owner of the land to which the application relates (other than themselves). The form of the notice is specified in Schedule 3 of the 2015 Regulations.

6.4. Determination Process and Timescales

On receipt of the application, the planning authority must consult with various statutory bodies such as the HSE, SEPA and NatureScot for their specialist advice.

The application will be decided by the planning authority. It can either grant consent, grant consent with conditions or refuse consent. Where an application relates to more than one hazardous substance, different decisions can be made in relation to each substance.

Timescales

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 HSC applications. No decision can be issued until after the time periods for representations and responses specified in the owner and neighbour notifications, newspaper notices and consultation notice. The applicant and the planning authority may agree to an extended period for the determination. Such extensions are often required to allow sufficient time for the detailed assessment work required by the HSE.

The applicant can appeal to the Scottish Ministers on the grounds of non-determination, where no decision notice is issued within the two month period or within any agreed extension.