The Planning (Control of Major–Accident Hazards) (Scotland) Regulations 2009

Made: 29th October 2009

Laid before the Scottish Parliament: 30th October 2009

Coming into force: 23rd November 2009

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections2, 3, and 39(1) of the Planning (Hazardous Substances) (Scotland) Act 1997[^f00001], sections 8(1)(b) and 16(2)(b) of the Town and Country Planning (Scotland) Act 1997[^f00002] and all other powers enabling them to do so.

Citation, commencement, interpretation and extent

1

• (1) These Regulations may be cited as the Planning (Control of Major–Accident Hazards) (Scotland) Regulations 2009 and come into force on 23rd November 2009.

• (2) In these Regulations “the Hazardous Substances Regulations” means the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993[^f00003].

• (3) These Regulations extend to Scotland only.

Amendment of the Town and Country Planning (Development Planning) (Scotland) Regulations 2008

2

• (1) The Town and Country Planning (Development Planning) (Scotland) Regulations 2008[^f00004] are amended in accordance with paragraphs(2) to (4).

• (2) In regulation1(2) (citation, commencement and interpretation) in the definition of “Directive”, after “Council”, insert “as amended by Council Directive 2003/105/EC[^f00005],”.

• (3) For regulation3(2)(b) (information and considerations) substitute—

(b) the need in the long term to maintain appropriate distances between establishments covered by the Directive and residential areas, buildings and areas of public use, major transport routes as far as possible, recreational areas and areas of particular natural sensitivity or interest; and

• (4) For regulation10(2)(b) (information and considerations) substitute—

(b) the need in the long term to maintain appropriate distances between establishments covered by the Directive and residential areas, buildings and areas of public use, major transport routes as far as possible, recreational areas and areas of particular natural sensitivity or interest; and

Amendment to the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993

3

• (1) The Hazardous Substances Regulations are amended in accordance with paragraphs(2) to (4).

• (2) In regulation2(1) (interpretation), in the definition of “the Directive” after “Council Directive 96/82/EC”, insert “as amended by Council Directive 2003/105/EC”.

• (3) In regulation4(6) for “6, 14, 35 and 39” substitute “10, 18, 39 and 43”.

• (4) For Schedule1 (hazardous substances and controlled quantities) substitute the new Schedule1 as set out in the Schedule to these Regulations.

• (5) In Schedule2 (prescribed forms, notices and certificates) in Note(a) to forms1 (application for hazardous substances consent), 2 (application for hazardous substances consent without a condition imposed on a previous consent and continuation of hazardous substances consent following a change of control of part of the land) and 12 (claim for deemed consent), at the end insert “and the Planning (Control of Major–Accident Hazards) (Scotland) Regulations 2009[^f00006]”.

Transitional provision: existing consents

4

Where amendments made to the Hazardous Substances Regulations by virtue of regulation3(4) result in a substance, mixture or preparation being renamed or re-categorised then such amendments shall not affect the validity of any hazardous substances consent granted in respect of such substance, mixture or preparation before the date on which these Regulations come into force.

Transitional exemptions

5

• (1) No offence is committed under section21 of the Planning (Hazardous Substances) (Scotland) Act 1997 before 23rd May 2010 and no hazardous substances contravention notice may be issued before that date in relation to a hazardous substance which is on, over or under any land, if—

• (a) the substance was present on, over or under land at any time within the period of 12months ending on 23rd November 2009 and was not a substance or quantity of substance for which hazardous consent was required before that date; and

• (b) the substance is not present during the period beginning on 23rd November 2009 and ending on 22nd May 2010 in a quantity greater in aggregate than the established quantity.

• (2) In paragraph(1) “the established quantity”, in relation to any land, means the maximum quantity which was present on, over or under the land at any onetime within the period of 12months ending on 23rd November 2009.

SCHEDULE

Signed

STEWART STEVENSON — Authorised to sign by the Scottish Ministers — 29th October 2009

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations implement, in relation to town and country planning in Scotland, Article12 of Council Directive96/82/EC on the control of major accident hazards involving dangerous substances (O.J.No.L10, 14.1.1997, p.13) (the Seveso II Directive), as amended by Council Directive2003/105/EC (O.J.No.L345, 31.12.2003, p.97) (the 2003 Directive).

Article12 of the SevesoII Directive requires that the objectives of preventing major accidents and limiting the consequences of such accidents are taken into account in land‑use policies; and that these objectives are achieved through controls and the requirement to ensure that planning authorities set up appropriate consultation procedures to facilitate the implementation of these and other policies established under the Article. It also requires Member States to take account of the need, in the long term, to maintain appropriate distances between establishments covered by the Directive and residential areas, areas of public use, and areas of natural sensitivity or interest. The 2003 Directive extends this requirement to include buildings in public use, major transport routes as far as possible, and recreational areas.

Regulation2 amends the Town and Country Planning (Development Planning) (Scotland) Regulations2008 (S.S.I. 2008/426) so that strategic development planning authorities and planning authorities are to have regard to this extended requirement when preparing a strategic development plan, main issues report or local development plan as appropriate.

The amendments made by the 2003 Directive also extend the scope of the SevesoII Directive by amending AnnexI to the SevesoII Directive (application of the SevesoII Directive). AnnexI applies to the presence of dangerous substances (including mixtures and preparations) at any establishment. In so doing, AnnexI determines the application of Article12. The new AnnexI increases the range of dangerous substances, and revises the definitions and qualifying quantities of dangerous substances that were listed in AnnexI of the SevesoII Directive. Among those dangerous substances now included by virtue of the amendments made by the 2003 Directive are those associated with risks arising from certain storage and processing activities in mining.

Regulation3 amends the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 (S.I. 1993/323) by substituting a new Schedule1 prescribing the substances which are hazardous substances and their controlled quantities, in order to implement the amendments made to AnnexI of the SevesoII Directive by the 2003 Directive. Regulation3 also makes some minor amendments to reflect the substitution of the new Schedule1.

Regulation4 makes transitional provision to ensure that existing hazardous substances consents are not treated as invalid because hazardous substances have now been renamed or re‑categorised.

Regulation5 confers transitional immunity from prosecution and contravention proceedings for a period of 6months from the day these Regulations came into force. During this time an application for consent may be made.

A Regulatory Impact Assessment has been prepared in relation to these Regulations. It has been placed in the Scottish Parliament Information Centre and copies may be obtained from Scottish Government Planning Directorate, Area2‑H, Victoria Quay, Edinburgh, EH6 6QQ.

Footnotes

[^f00001]: 1997 c.10; section38(2) attracts the definition of “prescribed” from section277(1) of the Town and Country Planning (Scotland) Act 1997 (c.8). The functions of the Secretary of State under these sections in or as regards Scotland were transferred to the Scottish Ministers by virtue of section53 of the Scotland Act 1998 (c.46).

[^f00002]: 1997 c.8. Sections 8(1)(b) and 16(2)(b) were inserted by section 2 of the Planning etc. (Scotland) Act 2006 (asp 17). The definition of prescribed is found in section 277(1) of the Town and Country Planning (Scotland) Act 1997 (“the 1997 Act”). The functions of the Secretary of State under the 1997 Act in or as regards Scotland were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46).

[^f00003]: S.I. 1993/323, amended by S.I.1994/2567, S.I.1996/252, S.S.I.2000/179, S.S.I.2003/1, S.S.I.2005/344 and S.I.2005/1082 and S.S.I.2006/270.

[^f00004]: S.S.I. 2008/426.

[^f00005]: O.J.No.L345, 31.12.2003, p.97.

[^f00006]: S.S.I. 2009/378.

[^f00008]: 15.75per cent nitrogen content by weight as a result of ammonium nitrate corresponds to 45per cent ammonium nitrate.

[^f00009]: 24.5per cent nitrogen content by weight as a result of ammonium nitrate corresponds to 70per cent ammonium nitrate.

[^f00010]: S.I. 2003/1082.

[^f00011]: 28per cent nitrogen content by weight as a result of ammonium nitrate corresponds to 80per cent ammonium nitrate.

[^f00012]: North Atlantic Treaty Organisation/ Committee for the Challenges of Modern Society.

[^f00013]: S.I. 2005/1082.

[^f00014]: S.I. 1987/37.

[^f00015]: S.I. 2009/716.

[^f00016]: 1985 c.48.

[^f00017]: O.J. No. L319, 12.12.1994, p.7. Directive as last amended by Commission Directive2003/28/EC (O.J. No.L90, 8.4.2003, p.45).

[^f00018]: 1997 c.10.

[^f00019]: 1997 c.8.