The Planning (Hazardous Substances) (Wales) Regulations 2015

Made: 3 August 2015

Laid before the National Assembly for Wales: 7 August 2015

Coming into force: 4 September 2015

The Welsh Ministers are designated for the purposes of section 2(2) of the European Communities Act 1972 (“the 1972 Act”) in relation to the prevention and limitation of the effects of accidents involving dangerous substances insofar as they relate to land-use planning, transport routes or fisheries .

The Welsh Ministers make these Regulations in exercise of the powers conferred by sections 4, 5, 7, 8, 17, 21, 21B, 24, 25, 26A, 28, 30 and 40 of the Planning (Hazardous Substances) Act 1990 , section 2(2) and paragraph 1A of Schedule 2 to the 1972 Act and section 26 of the Welsh Language Act 1993 .These Regulations make provision for a purpose mentioned in section 2(2) of the 1972 Act and it appears to the Welsh Ministers that it is expedient for the references in these Regulations to Regulation (EC) No. 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures , to be construed as references to that instrument as amended from time to time.

PART 1 — General

Title, commencement and application

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• (1) The title of these Regulations is the Planning (Hazardous Substances) (Wales) Regulations 2015 and they come into force on 4 September 2015.

• (2) These Regulations apply in relation to Wales.

Interpretation

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• (1) In these Regulations—

• “the 1992 Regulations” (“Rheoliadau 1992”) means the Planning (Hazardous Substances) Regulations 1992 ;

• “COMAH competent authority” (“awdurdod COMAH cymwys”) means—in relation to a nuclear site the Office of Nuclear Regulation and the Natural Resources Body for Wales acting jointly,otherwise, the Health and Safety Executive and the Natural Resources Body for Wales acting jointly;

• “commencement date” (“dyddiad cychwyn”) means 4 September 2015;

• “the Directive” (“y Gyfarwyddeb”) means Directive 2012/18/EU of the European Parliament and the Council on the control of major-accident hazards involving dangerous substances as it had effect immediately before IP completion day ;

• “the EIA Directive” (“y Gyfarwyddeb AEA”) means Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment as it had effect immediately before IP completion day;

• “electronic communications” (“cyfathrebiadau electronig”) has the meaning given in section 15(1) of the Electronic Communications Act 2000;

• “full statement of case” (“datganiad achos llawn”) means and is comprised of— a statement in writing containing full particulars of the case—the applicant proposes to put forward in relation to the application referred to the Welsh Ministers pursuant to a direction under section 20 of the PHSA; orthe appellant proposes to put forward in relation to the appeal under section 21 of the PHSA; andcopies of any supporting documents the applicant or the appellant proposes to refer to or put forward in evidence;

• “major accident” (“damwain fawr”) has the meaning given in Article 3(13) of the Directive as it had effect immediately before IP completion day;

• “nuclear site” (“safle niwclear”) has the same meaning as in section 112(1) of the Energy Act 2013 ;

• “the PHSA” (“y DCSP”) means the Planning (Hazardous Substances) Act 1990; and

• “TCPA” (“DCGTh”) means the Town and Country Planning Act 1990 .

• (2) In these Regulations a reference to a numbered form is a reference to the correspondingly numbered form in Schedule 3.

• (3) Parts 1 to 3 of Schedule 1 (hazardous substances and controlled quantities) are to be construed in accordance with the notes to that Schedule and a reference in that Schedule to a note is a reference to a note in Part 4 of that Schedule.

• (4) References in these Regulations to Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 (“the CLP Regulation”) on classification, labelling and packaging of substances and mixtures are references to that regulation as amended from time to time.

PART 2 — Hazardous substances, controlled quantities and exemptions

Hazardous substances and controlled quantities

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For the purposes of the PHSA—

• (a) hazardous substances are substances, mixtures or preparations—

• (i) falling within a category in column 1 of Part 1 of Schedule 1 to these Regulations (hazardous substances and controlled quantities),

• (ii) specified in column 1 of Part 2 of that Schedule, or

• (iii) meeting the description in column 1 of Part 3 of that Schedule,

and present as raw materials, products, by-products, residues or intermediates; and

• (b) the controlled quantity of a hazardous substance is the quantity specified in column 2 of Schedule 1 to these Regulations corresponding to that substance.

Exemptions

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Schedule 2 to these Regulations has effect.

PART 3 — Hazardous substances consent procedures

Applications for hazardous substances consent

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• (1) Subject to paragraph (2) and regulation 25 (application of the PHSA to hazardous substances authorities), an application for hazardous substances consent must—

• (a) be made to the hazardous substances authority;

• (b) include the name and address of the applicant;

• (c) include a site map and a substance location plan;

• (d) include details of—

• (i) the location of the land to which the application relates;

• (ii) the person in control of the land to which the application relates;

• (iii) each hazardous substance for which consent is sought (“relevant substance”), including the maximum quantity of each relevant substance proposed to be present;

• (iv) the main activities carried out or proposed to be carried out on the land to which the application relates;

• (v) how and where each relevant substance is to be kept and used;

• (vi) how each relevant substance is proposed to be transported to and from the land to which the application relates,

• (vii) the vicinity of the relevant land, where such details are relevant to the risks or consequences of a major accident; and

• (viii) the measures taken or proposed to be taken to limit the consequences of a major accident; and

• (e) be accompanied by the notices and certificates required by regulations 6 and 7.

• (2) Subject to regulation 25 (application of the PHSA to hazardous substances authorities), an application to which section 13 of the PHSA applies (application for hazardous substances consent without a condition subject to which a previous consent was granted) must—

• (a) be made to the hazardous substances authority;

• (b) include the name and address of the applicant;

• (c) include a change of location plan, if the application relates to a condition restricting the location of a hazardous substance;

• (d) include in relation to any relevant consent, a copy of—

• (i) the consent, where the relevant consent is a consent granted on an application under the PHSA;

• (ii) the relevant claim, where the relevant consent is a consent deemed to be granted under section 11 of the PHSA; or

• (iii) the relevant direction, where the relevant consent is a consent deemed to be granted under section 12;

• (e) identify any condition previously imposed on the relevant consent which—

• (i) it is proposed should no longer be imposed on the consent; or

• (ii) it is proposed should only be imposed in a modified form;

• (f) for any condition identified under sub-paragraph (e)(i), give the reasons why it should not be imposed;

• (g) for any condition identified under sub-paragraph (e)(ii)—

• (i) indicate the proposed modification; and

• (ii) give the reasons why it should only be imposed in a modified form;

• (h) describe any relevant changes in circumstances since the date of the relevant consent; and

• (i) be accompanied by the notices and certificates required by regulations 6 and 7.

• (3) An application under section 17 of the PHSA (application for the continuation of consent following a change of control) must—

• (a) be made to the hazardous substances authority;

• (b) include the name and address of the applicant;

• (c) include a change of control plan;

• (d) include, in relation to any relevant consent, whichever of the documents listed in paragraph (2)(d) is applicable to the relevant consent;

• (e) state the date on which the change in the person in control of part of the land is to take place, where known;

• (f) describe the use of each area of the site identified in the change of control plan;

• (g) describe any relevant changes in circumstances since the relevant consent was granted; and

• (h) be accompanied by the notices and certificates required by regulations 6 and 7.

• (4) Any application to which this regulation applies and anything required to accompany it must, if requested by the hazardous substances authority, be submitted in triplicate.

• (5) In this regulation—

• “change of control plan” (“plan newid rheolaeth”) is a plan of the land to which the application relates, drawn to a scale of not less than 1:2,500, which identifies each area of the site under separate control after the proposed change of control;

• “change of location plan” (“plan newid lleoliad”) is a plan of the land to which the application relates, drawn to a scale of not less than 1:2,500, which identifies the location of the hazardous substance at the date of the application and the proposed location requiring the application;

• “relevant consent” (“cydsyniad perthnasol”) means the existing hazardous substances consent to which the application relates;

• “site map” (“map safle”) is a map, reproduced from, or based on, an Ordnance Survey map with a scale of not less than 1:10,000, which identifies the land to which the application relates and shows National Grid lines and reference numbers; and

• “substance location plan” (“plan lleoliad sylwedd”) is a plan of the land to which the application relates, drawn to a scale of not less than 1:2,500, which identifies—any area of the land intended to be used for the storage of the substance;where the substance is to be used in a manufacturing, treatment or other industrial process, the location of the major items of plant involved in that process in which the substance will be present; andaccess points to and from the land.

• (6) Regulations 6 to 13 apply to applications made under section 17 of the PHSA (revocation of hazardous substances consent on change of control of land) as they apply to applications for hazardous substances consent.

Publication of notices of applications

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• (1) Before making an application for hazardous substances consent to the hazardous substances authority, the applicant must, during the 21 day period immediately preceding the application—

• (a) inform the public by notice published in a local newspaper circulating in the locality in which the land to which the application relates is situated, or by other appropriate means, including electronic communications, of the following matters—

• (i) a description of the proposal and the address or location of the land to which the application relates;

• (ii) where applicable, the fact that the proposal is, or is part of, a project that is subject to a national or transboundary environmental impact assessment (which have the same meaning as in any provision of retained EU law which implemented the EIA Directive) ;

• (iia) where applicable, the fact that the project to which the proposal relates is one in respect of which the COMAH competent authority is required to consult any country in accordance with Regulation 20 of the Control of Major Accident Hazards Regulations 2015;

• (iii) that the hazardous substances authority (from which relevant information can be obtained) will decide whether or not to grant consent, and if to grant, will decide on what conditions to grant;

• (iv) that representations (including comments or questions) may be made to the hazardous substances authority;

• (v) details of how such representations should be made and the time period for making representations, which must be not less than 21 days beginning with the day after the day on which an application under regulation 5 is sent to the hazardous substances authority;

• (vi) an indication of the times and places where, or means by which, relevant information will be made available; and

• (b) subject to paragraphs (2) and (3), post a notice containing the information referred to in sub-paragraph (a) on the land to which the application relates for not less than 7 days sited and displayed in such a way as to be easily legible without entering onto the land.

• (2) An applicant is not required to comply with paragraph (1)(b) if—

• (a) the applicant has no right of access or other rights in respect of the land which would enable the applicant to post the notice as required; and

• (b) the applicant has taken all reasonable steps to acquire the rights but has failed.

• (3) The applicant is not to be treated as having failed to comply with paragraph (1)(b) if the notice is, without any fault or intention of the applicant, removed, obscured or defaced before the 7 days referred to in that paragraph have elapsed, so long as the applicant has taken reasonable steps for protection of the notice and, if need be, its replacement.

• (4) An application for hazardous substances consent must not be entertained by the hazardous substances authority unless it is accompanied by—

• (a) a copy of the notice referred to in paragraph (1) certified by, or on behalf of, the applicant as having been published in accordance with paragraph (1)(a);

• (b) where published in a local newspaper, details of the name of the newspaper and the date of its publication;

• (c) where published by other means, details of those other means; and

• (d) the appropriate certificate on Form 1, signed by or on behalf of the applicant.

Notification of applications to owners

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• (1) An application for hazardous substances consent must not be entertained by the hazardous substances authority unless it is accompanied by whichever of certificates A to D set out in Form 2 is appropriate, signed by or on behalf of the applicant.

• (2) The required notice referred to in certificates B and C of Form 2 must, in the case of an application for hazardous substances consent, be a notice given on Form 3 and must attach a copy of the notice required to be published under regulation 6(1)(a).

Inspection of applications

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Following receipt of an application under regulation 5, the hazardous substances authority must ensure that a copy of the application is available for inspection at the offices of the hazardous substances authority during the period allowed for making representations pursuant to regulation 6(1).

Receipt of applications by hazardous substances authority

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• (1) When the hazardous substances authority receive a valid application for hazardous substances consent or an application for any consent, agreement or approval required by a condition imposed on a grant of hazardous substances consent, they must, as soon as practicable—

• (a) acknowledge receipt of the application in writing; and

• (b) send a copy of the application to the COMAH competent authority.

• (2) Where, in the opinion of the hazardous substances authority, an application received by the authority is not a valid application, the authority must, as soon as practicable, notify the applicant of their opinion, giving their reasons.

• (3) For the purposes of this regulation and regulations 10 and 11—

• (a) an application is valid if it complies with regulation 5 and is accompanied by any documents required by regulations 6 and 7; and

• (b) a valid application for hazardous substances consent is to be taken to have been received when—

• (i) it is lodged with the hazardous substances authority; and

• (ii) any fee required to be paid in respect of the application has been paid to that authority.

Consultation before the grant of hazardous substances consent

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• (1) Except where the body or person concerned has notified the hazardous substances authority that they do not wish to be consulted, the authority must, before determining an application for hazardous substances consent, consult—

• (a) the COMAH competent authority;

• (b) the county or county borough council concerned, where that council is not also the hazardous substances authority;

• (c) the community or town council concerned;

• (d) the fire and rescue authority concerned, where that authority is not also the hazardous substances authority;

• (e) the person concerned to whom a licence has been granted under section 7(2) of the Gas Act 1986 (licencing of gas transporters) ;

• (f) the person concerned to whom a licence has been granted under section 6(1)(b) and (c) of the Electricity Act 1989 (licences authorising supply etc.) ;

• (g) where the land to which the application relates is within 2 kilometres of a royal palace, park or residence, the Secretary of State;

• (h) where the land to which the application relates is in an area designated as a new town, the development corporation for the new town;

• (i) where the land to which the application relates is situated within 2 kilometres of—