Hazardous substances consent

Under the provisions of the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993, and similarly the Planning (Hazardous Substances) Regulations 1992 in England and Wales, the presence of a ‘hazardous substance’ which is:

• On, under or over the land, or
• On, under or over other land within 500 metres of it and controlled by the same person, or
• In or on a structure controlled by the same person, any part of which is within 500 metres of it

and which is within or above the ‘controlled quantity’, the operator must obtain a Hazardous Substances Consent from the relevant hazardous substances authority (usually the local authority). The provisions of the regulations apply to any person knowingly causing/allowing the hazardous substance to be present, or the person in control of the land. There are 71 hazardous substances which, together with their controlled quantities, are listed in Schedule 1 of the Regulations.

Request the relevant application form together with relevant notices and certificates for publicity purposes from the hazardous substances authority (i.e. Local Authority).

Form 1 is for general applications for hazardous substances consent (HSC). Form 2 is for applications to remove conditions or to continue a consent upon partial change in control of land.

The hazardous substances consent may be applied for using a self-prepared proforma, provided that this accords with the prescribed form, otherwise the application may be invalid.

Before submitting an application form, applicants must also:

• Publish in a local newspaper a notice of the application, in accordance with the prescribed Form 3 (obtained from the hazardous substance authority with the application form). The newspaper notice must be published at some time within the period of 21 days immediately preceding the submission of the application.
• Post a copy of the same notice on the application site, displayed in such a way as to be easily legible to members of the public without their needing to go onto the land. This site notice must be left in position for not less than 7 days in the period of 21 days immediately preceding the submission of the application.

When the application is submitted it must be accompanied by:

• A copy of the newspaper notice, certified as having been published and specifying the name of the newspaper and date of publication.
• A certificate confirming that the site notice requirements have been complied with.

Schedule 2 of The Planning (Hazardous Substances) Regulations 1992 and Schedule 2 of The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 contain the relevant forms required to make an application for a Hazardous Substances Consent. The remaining forms contained in Schedule 2 of the Regulations relate to certifying ownership of the property.

The application must be accompanied by the appropriate fee. For applications where no one substance exceeds twice the controlled quantity, the fee is £250. For proposals involving the presence of a substance in excess of twice the controlled quantity, the fee is £400. Where the application is for either:

• The removal of conditions attached to a grant of consent, or
• The continuation of a consent upon partial change in ownership of the land, the fee is £200.

The overall application must comprise three copies of each document, i.e. the application form, the map and plan, and all notices and certificates.

In addition, under the Notification of Installations Handling Hazardous Substances Regulations 1982 as amended, the Health and Safety Executive must be notified of an operator’s intention to store and/or handle a ‘hazardous substance’ at a quantity greater than the ‘notifiable quantity’ which is:

• That part of any pipeline under the control of the person having control of the site, which is within 500 metres of that site and connected to it.
• At any other site under the control of the same person any part of the boundary of which is within 500 metres of the said site.

The operator must notify the HSE of any intention to handle hazardous substances in writing, at least three months before any activities involving the substances occur. This period may be reduced as long as the HSE agree. The details that must be included in the letter of notification are listed in Schedule 2 of The Notification of Installations Handling Hazardous Substances Regulations 1982 as amended.

The information required in Schedule 2 includes the following:

• Name and address of the person making the notification.
• Full postal address of the site and ordnance survey grid reference.
• Area of the site covered by the notification.
• Potential commencement date.
• Description of activities.
• Name and address of the local planning authority.
• Name and maximum quantity of each hazardous substance liable to be on the site.

The HSE will acknowledge that they have been notified of an operator’s intention to handle hazardous substances.

REACH provisions will be phased-in over 11 years.

The impact of the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regime is developing. The requirement for manufacturers and importers to pre-register chemicals has concluded. Chemicals manufactured or imported into the EU in quantities of over one tonne need to be registered with the European Chemicals Agency (ECHA). Gradually more requirements are being passed onto users of chemicals with certain records to be kept.

A Timetable of REACH Implementation (Word document) is available on the DECC Website.

Where the applicant has contravened hazardous substances control, i.e. the applicant has not complied with the terms or conditions of the consent, or a consent was not obtained, the hazardous substances authority has several options open to them:

• They may prosecute, as contravention of control is in itself an offence; the maximum penalty on summary conviction is an unlimited fine.
• They may issue a hazardous substances contravention notice, specifying the steps to be taken to rectify the breach of control.
• They may seek a Court injunction to restrain any actual or expected breach of control.
• They may negotiate in order to achieve a discontinuance of the breach without recourse to formal action.