Planning (Hazardous Substances) (Scotland) Act 1997

Administration

Planning authorities: hazardous substances

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• (1) It shall be the duty of the planning authority to control hazardous substances in accordance with the provisions of this Act.

• (2) The duty under subsection (1) applies to an urban development corporation only if they are the planning authority in relation to all kinds of development.

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 planning 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 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) 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 9 , 10, 10A or 30D .

• (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 may—

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

• (b) require the planning authority to conduct appropriate consultations before determining applications for hazardous substances consent;

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

• (i) such a consultation;

• (ii) any stage in such a consultation,

is to be completed;

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

• (e) require the planning authority 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) “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 interests in land etc

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• (1) Regulations 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 a certificate in the prescribed form as to the interests in the land to which the application or appeal relates.

• (2) Any such regulations may—

• (a) include requirements corresponding to those mentioned in sections 34(1), 35(2) and (4) and 38(2) of the principal Act,

• (b) make provision as to who is to be treated as the owner of land for the purposes of any provision of the regulations, and

• (c) make different provision for different cases or descriptions of case.

• (3) If any person—

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

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

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 planning authority for hazardous substances consent, that authority may—

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

• (b) refuse hazardous substances consent.

• (2) In dealing with such an application the planning 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 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 5(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 planning 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 amount permitted 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 7(1), a planning authority may grant 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 or development consent or may grant such 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) times between which any such substance may be present, and

• (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 planning 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 planning 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.

Deemed hazardous substances consent: established presence

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• (1) Hazardous substances consent deemed to be granted by a planning authority under section 38 of the Housing and Planning Act 1986 (under which hazardous substances consent is deemed to be granted in certain circumstances where a hazardous substance was present before 1st May 1993) shall continue to have effect notwithstanding the repeal of that section and shall be deemed to be granted by the authority under this section.

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

• (a) 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 relates,

• (ii) on, over or under other land which is within 500 metres of it and controlled by the same person, or

• (iii) in or on a structure controlled by the same person any part of which is within 500 metres of it,

at any one time shall not exceed the established quantity, and

• (b) such other conditions (if any) as are prescribed for the purposes of this section and are applicable in the case of that consent.

• (3) The provisions of this Act (except section 20) shall apply in relation to any hazardous substances consent deemed to be granted under this section as if it had been granted by the planning authority on an application to them.

• (4) In this section “established quantity” means, in relation to any land—

• (a) where before 1st May 1993 there was a notification in respect of a substance in accordance with any of the Notification of Installations Handling Hazardous Substances Regulations 1982—

• (i) the quantity notified or last notified before that date, or

• (ii) a quantity equal to twice the quantity which was so notified or last notified before the start of the period of 12 months immediately preceding that date,

whichever is the greater;

• (b) where a notification was not required before that date by any of those Regulations, a quantity exceeding by 50 per cent. the maximum quantity which was present on, over or under the land at any one time within that period.

Deemed hazardous substances consent: government authorisation

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• (1) Where—

• (a) the authorisation of a government department is required by virtue of an enactment in respect of development to be carried out by a local authority, or by statutory undertakers who are not a local authority, and

• (b) the development would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent,

the department may, on granting that authorisation, also direct that hazardous substances consent for that development shall be deemed to be granted subject to such conditions (if any) as may be specified in the directions.

• (2) On granting a consent under section 36 of the Electricity Act 1989 in respect of any operation or change of use that would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent, the Secretary of State may direct that hazardous substances consent shall be deemed to be granted, subject to such conditions (if any) as may be specified in the directions.

• (2A) On making an order under section 1 of the Transport and Works (Scotland) Act 2007 which includes any provision that would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent, the Scottish Ministers may direct that hazardous substances consent shall be deemed to be granted, subject to such conditions (if any) as may be specified in the directions.

• (2B) On making an order granting development consent in respect of development that would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent, the person making the order may direct that hazardous substances consent shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.

• (3) Before giving a direction under any of subsections (1) to (2B), the person having power to give the direction must consult the Health and Safety Commission.

• (4) For the purposes of this section development shall be taken to be authorised by a government department if—

• (a) any consent, authority or approval to or for the development is granted by the department in pursuance of an enactment,

• (b) a compulsory purchase order is confirmed by the department authorising the purchase of land for the purpose of the development,

• (c) consent is granted by the department to the appropriation of land for the purpose of the development or the acquisition of land by agreement for that purpose,

• (d) authority is given by the department for the borrowing of money for the purpose of the development, or for the application for that purpose of any money not otherwise so applicable, or

• (e) any undertaking is given by the department to pay a grant in respect of the development in accordance with an enactment authorising the payment of such grants,

and references in this section to the authorisation of a government department shall be construed accordingly.

• (5) The provisions of this Act (except section 20) shall apply in relation to any hazardous substances consent deemed to be granted by virtue of directions under this section as if it had been granted by the Secretary of State on an application referred to him under section 18.

• (6) A person shall, as respects any hazardous substances consent deemed to be granted by virtue of directions given by the person under this section, send to the planning authority concerned any such information as appears to be required by them for the purposes of a register under section 27.

Variation and revocation of consents

Applications for removal of conditions attached to hazardous substances consent

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• (1) This section applies to an application for hazardous substances consent without a condition subject to which a previous hazardous substances consent was granted or is deemed to have been granted.

• (2) On such an application the planning authority shall consider only the question of the conditions subject to which hazardous substances consent should be granted.

• (3) If on such an application the planning authority determine—

• (a) that hazardous substances consent should be granted subject to conditions differing from those subject to which the previous consent was granted, or

• (b) that it should be granted unconditionally,

they shall grant hazardous substances consent accordingly.

• (4) If on such an application the planning authority determine that hazardous substances consent should be granted subject to the same conditions as those subject to which the previous consent was granted, they shall refuse the application.

• (5) Where—

• (a) hazardous substances consent has been granted or is deemed to have been granted for the presence on, over or under land of more than one hazardous substance, and

• (b) an application under this section does not relate to all the substances,

the planning authority shall have regard to any condition relating to a substance to which the application does not relate only to the extent that it has implications for a substance to which the application does relate.

• (6) Where—

• (a) more than one hazardous substances consent has been granted or is deemed to have been granted in respect of the same land, and

• (b) an application under this section does not relate to all the consents,

the planning authority shall have regard to any consent to which the application does not relate only to the extent that it has implications for a consent to which the application does relate.

General power by order to revoke or modify hazardous substances consent

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• (1) The planning authority may by order revoke a hazardous substances consent or modify it to such extent as they consider expedient if it appears to them, having regard to any material consideration, that it is expedient to revoke or modify it.