Planning (Hazardous Substances) Act 1990

Hazardous substances authorities

Hazardous substances authorities: general

1

The council of the district , Welsh county, county boroughor London borough in which land is situated shall be the hazardous substances authority in relation to the land except in cases where section . . . 3 applies. But, in the case of a London borough, see also section 2B(5) of the principal Act (Mayor of London to be the hazardous substances authority in certain circumstances).

Hazardous substances authorities: statutory undertakers

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Hazardous substances authorities: other special cases

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• (1) The county council shall be the hazardous substances authority for land which is in a non-metropolitan county in England and—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) is used for the winning and working of minerals (including their extraction from a mineral-working deposit); or

• (c) is situated in England and used for the disposal of refuse or waste materials,

. . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) The Broads Authority is the hazardous substances authority for the Broads unless subsection (1) . . . applies.

• (4) If the land is in an area for which an urban development corporation or a Mayoral development corporation is the local planning authority in relation to all kinds of development, the corporation shall be the hazardous substances authority for the land unless subsection (1) . . . applies.

• (5) If the land is in an area for which a housing action trust established under Part III of the Housing Act 1988 is the local planning authority in relation to all kinds of development, the trust shall be the hazardous substances authority for the land unless subsection (1) . . . applies.

• (5A) The power to make a designation order under section 13 of the Housing and Regeneration Act 2008 which contains provision of the kind mentioned in section 14(3) of that Act does not extend to providing for the Homes and Communities Agency to be the hazardous substances authority (whether instead of, or concurrently with, a county council) in relation to land to which subsection (1) above applies.

• (5B) Subject to this, section 1 and this section are subject to any provision made by such an order.

• (5C) A joint planning board constituted under section 2(1B) of the principal Act for a united district in Wales is the hazardous substances authority for land in the united district unless subsection (4) ... applies.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Control over presence of hazardous substances

Requirement of hazardous substances consent

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• (1) Subject to the provisions of this Act, the presence of a hazardous substance on, over or under land requires the consent of the hazardous substances authority (in this Act referred to as “hazardous substances consent”).

• (2) Subsection (1) does not apply if the aggregate quantity of the substance—

• (a) on, over or under the land;

• (aa) on, over or under other land which is controlled by the same person and which, in all the circumstances (including in particular the purposes for which the land and the land mentioned in paragraph (a) is used) forms with the land so mentioned a single establishment;

• (b) on, over or under other land which is within 500 metres of the land mentioned in paragraph (a) and controlled by the same person; or

• (c) in or on a structure controlled by the same person any part of which is within 500 metres of the land mentioned in paragraph (a),

is less than the quantity prescribed as the controlled quantity for that substance.

• (2A) A quantity of a substance which falls within more than one paragraph of subsection (2) shall only be counted once.

• (3) The temporary presence of a hazardous substance while it is being transported from one place to another is not to be taken into account unless–

• (a) it is unloaded; or

• (b) it is present on, over or under land in respect of which there is a hazardous substances consent for any substance, or in respect of which (not taking into account the quantity of the substance being transported) there is required to be such a consent for any substance.

• (4) The Secretary of State may by regulations provide that hazardous substances consent is not required or is only required—

• (a) in relation to land of prescribed descriptions;

• (b) by reason of the presence of hazardous substances in prescribed circumstances.

• (5) Regulations under this section may make different provision for different cases or descriptions of cases.

Power to prescribe hazardous substances

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• (1) For the purposes of this Act the Secretary of State—

• (a) shall by regulations specify—

• (i) the substances that are hazardous substances; and

• (ii) the quantity which is to be the controlled quantity of any such substance; and

• (b) may by regulations provide that, except in such circumstances as may be prescribed, all hazardous substances falling within a group specified in the regulations are to be treated as a single substance.

• (2) Regulations which—

• (a) are made by virtue of subsection (1)(a)(i); or

• (b) are made by virtue of subsection (1)(a)(ii) and reduce the controlled quantity of a substance,

may make such transitional provision as appears to the Secretary of State to be appropriate.

• (3) The power under section 40(5) for regulations under this section to make transitional provision includes, without prejudice to its generality, power to apply sections 11 and 26 subject to such modifications as appear to the Secretary of State to be appropriate.

• (4) Regulations under this section may make different provision for different cases or descriptions of cases.

Obtaining hazardous substances consent

Hazardous substances consent: general

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• (1) Hazardous substances consent—

• (a) may be granted on an application under this Act, or

• (b) may be deemed to have been granted by virtue of section 11 or 12.

• (2) Without prejudice to the provisions of this Act, any hazardous substances consent shall (except in so far as it otherwise provides) enure for the benefit of the land to which it relates and of all persons for the time being interested in the land.

Applications for hazardous substances consent

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• (1) Provision may be made by regulations with respect to—

• (a) the form and manner in which applications under this Act for hazardous substances consent are to be made;

• (b) the particulars which they are to contain and the evidence by which they are to be verified;

• (c) the manner in which they are to be advertised; and

• (d) the time within which they are to be dealt with.

• (2) Regulations—

• (a) may require an applicant for hazardous substances consent or the hazardous substances authority or both to give publicity to an application for hazardous substances consent in such manner as may be prescribed;

• (b) may require hazardous substances authorities to conduct appropriate consultations before determining applications for hazardous substances consent;

• (c) may provide for the manner in which such a consultation is to be carried out and the time within which—

• (i) such a consultation; or

• (ii) any stage in such a consultation,

is to be completed;

• (d) may require hazardous substances authorities to determine applications for hazardous substances consent within such time as may be prescribed;

• (e) may require hazardous substances authorities to give prescribed persons or bodies prescribed information about applications for hazardous substances consent, including information as to the manner in which such applications have been dealt with.

• (3) In subsection (2) above “appropriate consultations” means consultations with the safety regulator and with such persons or bodies as may be prescribed.

• (4) Regulations under this section may make different provision for different cases or descriptions of cases.

Certificates as to applicant’s status etc

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• (1) Regulations under this Act may provide that an application for hazardous substances consent or an appeal against the refusal of such an application or against the imposition of a condition on such a consent shall not be entertained unless it is accompanied by one of the following certificates in the prescribed form and signed by or on behalf of the applicant—

• (a) a certificate stating that, at the beginning of the period of 21 days ending with the date of the application, no person (other than the applicant) was the owner of any of the land to which the application relates;

• (b) a certificate stating that the applicant has given the requisite notice of the application to all the persons (other than himself) who, at the beginning of that period, were owners of any of the land to which the application relates;

• (c) a certificate stating that—

• (i) the applicant is unable to issue a certificate in accordance with paragraph (a) or (b);

• (ii) he has given the requisite notice of the application to such one or more of the persons mentioned in paragraph (b) as are specified in the certificate;

• (iii) he has taken such steps as are reasonably open to him (specifying them) to ascertain the names and addresses of the remainder of those persons but has been unable to do so;

• (d) a certificate stating that—

• (i) the applicant is unable to issue a certificate in accordance with paragraph (a);

• (ii) he has taken such steps as are reasonably open to him (specifying them) to ascertain the names and addresses of the persons mentioned in paragraph (b) but has been unable to do so.

• (2) Where such provision is made any such certificate as is mentioned in subsection (1)(b) or (c) must set out—

• (a) the names of those persons to whom the applicant has given the requisite notice of the application;

• (b) the addresses at which notice was given to them;

• (c) the date of service of each such notice.

• (3) Such regulations may require that any such certificate as is mentioned in subsection (1)(c) or (d) shall also contain a statement that the requisite notice of the application, as set out in the certificate, has on a date specified in the certificate (which must not be earlier than the beginning of the period mentioned in subsection (1)(a)) been published in a local newspaper circulating in the locality in which the land in question is situated.

• (4) Such regulations may also require that where an application is accompanied by such a certificate as is mentioned in subsection (1)(b),(c) or (d) the hazardous substances authority—

• (a) shall not determine the application before the end of the period of 21 days beginning with the date appearing from the certificate to be the latest of the dates of service of notices as mentioned in the certificate or, if later, the date of publication of a notice as so mentioned;

• (b) in determining the application, shall take into account any representations relating to it which are made to them before the end of that period by any person who satisfies them that he is an owner of any land to which the application relates; and

• (c) shall give notice of their decision to every person who has made representations which they were required to take into account in accordance with paragraph (b).

• (5) Such regulations may also make provision as to who is to be treated as the owner of land for the purposes of any provisions of the regulations.

• (6) If any person—

• (a) issues a certificate which purports to comply with the requirements of regulations made by virtue of this section and contains a statement which he knows to be false or misleading in a material particular; or

• (b) recklessly issues a certificate which purports to comply with those requirements and contains such a statement,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

• (7) Regulations under this section may make different provision for different cases or descriptions of cases.

• (8) Subject to subsection (5), in this section “owner,” in relation to any land, means a person who is for the time being the estate owner in respect of the fee simple in the land or is entitled to a tenancy of the land granted or extended for a term of years certain, of which not less than seven years remain unexpired.

Determination of applications for hazardous substances consent

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• (1) Subject to the following provisions of this Act, where an application is made to a hazardous substances authority for hazardous substances consent, that authority—

• (a) may grant hazardous substances consent, either unconditionally or subject to such conditions as they think fit; or

• (b) may refuse hazardous substances consent.

• (2) In dealing with such an application the hazardous substances authority shall have regard to any material considerations and, in particular, but without prejudice to the generality of the foregoing—

• (a) to any current or contemplated use of the land to which the application relates;

• (b) to the way in which land in the vicinity is being used or is likely to be used;

• (c) to any planning permission , permission in principle , infrastructure consent or development consent that has been granted for development of land in the vicinity;

• (d) to the provisions of the development plan; and

• (e) to any advice which the safety regulator has given following consultations in pursuance of regulations under section 7(2).

• (3) If an application relates to more than one hazardous substance, the authority may make different determinations in relation to each.

• (4) It shall be the duty of a hazardous substances authority, when granting hazardous substances consent, to include in that consent—

• (a) a description of the land to which the consent relates;

• (b) a description of the hazardous substance or substances to which it relates; and

• (c) in respect of each hazardous substance to which it relates, a statement of the maximum quantity allowed by the consent to be present at any one time.

Power to impose conditions on grant of hazardous substances consent

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• (1) Without prejudice to the generality of section 9(1), a hazardous substances authority may make the grant of hazardous substances consent conditional on the commencement or partial or complete execution of development on the land which is authorised by a specified planning permission , infrastructure consent or development consent or may grant hazardous substances consent subject to conditions with respect to any of the following—

• (a) how and where any hazardous substance to which the consent relates is to be kept or used;

• (b) the times between which any such substance may be present;

• (c) the permanent removal of any such substance—

• (i) on or before a date specified in the consent; or

• (ii) before the end of a period specified in it and commencing on the date on which it is granted.

• (2) A hazardous substances authority may only grant consent subject to conditions as to how a hazardous substance is to be kept or used if the conditions are conditions to which the safety regulator has advised the authority that any consent they might grant should be subject.

• (3) It shall be the duty of a hazardous substances authority when granting hazardous substances consent to include in that consent in respect of each hazardous substance to which it relates a statement of all conditions relating to that substance subject to which the consent is granted.

• (4) Regulations in relation to England may, in relation to applications made pursuant to a condition attached to hazardous substance consent, make any provision corresponding to provision that may be made in relation to applications for such consent under section 7.

Deemed hazardous substances consent: established presence

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• (1) Where a hazardous substance was present on, over or under any land at any time within the establishment period hazardous substances consent may be claimed in respect of its presence.

• (2) A claim shall be made in the prescribed form before the end of the transitional period and shall contain the prescribed information as to the presence of the substance during the establishment period and as to how and where it was kept and used while it was so present.

• (3) Subject to subsections (4) to (6), the hazardous substances authority shall be deemed to have granted any hazardous substances consent which is claimed under subsection (1).

• (4) If at the relevant date notification in respect of the substance was required by regulation 3 or 5 of the Notification Regulations, hazardous substances consent is only to be deemed to be granted under this section if notification in respect of the substance was given before that date in accordance with those regulations.

• (5) If at the relevant date such notification was not so required, hazardous substances consent is only to be deemed to be granted under this section if an aggregate quantity of the substance not less than the controlled quantity was present at any one time within the establishment period.

• (6) If it appears to the hazardous substances authority that a claim for hazardous substances consent does not comply with subsection (2), it shall be their duty, before the end of the period of two weeks from their receipt of the claim—

• (a) to notify the claimant that in their opinion the claim is invalid; and

• (b) to give their reasons for that opinion.

• (7) Hazardous substances consent which is deemed to be granted under this section is subject . . .—

• (a) to the condition that the maximum aggregate quantity of the substance that may be present—

• (i) on, over or under the land to which the claim for the consent relates;