The Planning (Hazardous Substances) Regulations 2015

PART 1 General

Citation, commencement and application

1.—(1) These Regulations may be cited as the Planning (Hazardous Substances) Regulations 2015 and come into force on 1st June 2015.

(2) Except as provided by paragraphs (3) to (5), these Regulations apply in relation to England only.

(3) Regulation 24 applies in relation to England and, in so far as it applies to national policy statements designated under section 5(1) of the Planning Act 2008(1), to Wales and Scotland.

(4) Regulation 26—

(a) applies in relation to England;

(b) applies in relation to Wales and Scotland in so far as it applies to making development consent orders under section 114(1) of the Planning Act 2008; and

(c) applies in relation to Wales in so far as it applies to a decision by the Secretary of State authorising development in Wales under—

(i) section 5(1) of the Pipe-lines Act 1962(2); and

(ii) section 14(1) or section 16(1) of the Harbours Act 1964(3).

Interpretation

2.—(1) In these Regulations—

“the 1992 Regulations” means the Planning (Hazardous Substances) Regulations 1992(4);

“the Act” means the Planning (Hazardous Substances) Act 1990;

“COMAH competent authority” means the control of major accident hazards competent authority which is—

(a)

in relation to a nuclear site, the Office of Nuclear Regulation and the Environment Agency acting jointly,

(b)

otherwise, the Health and Safety Executive and the Environment Agency acting jointly;

“commencement date” means the date these Regulations come into force;

“the Directive” means Directive 2012/18/EU of the European Parliament and of the Council on the control of major-accident hazards involving dangerous substances(5); and

“nuclear site” has the same meaning as in section 112(1) of the Energy Act 2013(6).

(2) In these Regulations—

(a) a reference to a section is a reference to that section of the Act, unless there is a contrary indication; and

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

(3) Parts 1 to 3 of Schedule 1 to these Regulations (hazardous substances and controlled quantities) are to be construed in accordance with the notes in Part 4 of 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 to sections of the principal Act(7) mentioned in regulations 15, 17, 18 and 19 (enforcement) are, in those sections and these Regulations, to be construed as references to those sections as modified by these Regulations in relation to hazardous substances control.

(5) 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 (“the CLP Regulation”) are references to that Regulation as amended from time to time.

PART 2 Hazardous substances, controlled quantities and exemptions

Hazardous substances and controlled quantities

3.  For the purpose of the Act—

(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,

(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 that Schedule corresponding to that substance.

Exemptions

4.  Schedule 2 to these Regulations has effect.

PART 3 Hazardous substances consent procedures

Applications for hazardous substances consent

5.—(1) Subject to paragraph (2) and regulation 23 (application of the Act 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 land to which the application relates, 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 23 (application of the Act to hazardous substances authorities), an application to which section 13 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 Act;

(ii) the relevant claim, where the relevant consent is a consent deemed to be granted under section 11; 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 paragraph (e)(i), give the reasons why it should not be imposed;

(g) for any condition identified under 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 (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” 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” 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” means the existing hazardous substances consent to which the application relates;

“site map” 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” is a plan of the land to which the application relates, drawn to a scale of not less than 1:2,500, which identifies—

(a)

any area of the land intended to be used for the storage of the substance;

(b)

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; and

(c)

access points to and from the land.

(6) Regulations 6 to 13 apply to applications made under section 17 as they apply to applications for hazardous substances consent.

Publication of notices of applications

6.—(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 media, 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 or to consultations between member States in accordance with Article 14(3) of the Directive;

(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 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

7.—(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

8.  Following receipt of an application under regulation 5, the hazardous substance 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

9.—(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

10.—(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 district or London borough council or county council concerned, where that council is not also the hazardous substances authority;

(c) the parish council concerned;

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

(e) a person to whom a licence has been granted under section 7(2) of the Gas Act 1986 (licensing of gas transporters)(8);

(f) a person to whom a licence has been granted under section 6(1)(b) and (c) of the Electricity Act 1989 (licences authorising supply, etc)(9);

(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—

(i) an adjacent county, county borough, district or London borough, the council for that county, county borough, district or London borough;

(ii) the area of an adjacent fire authority and civil defence authority, that authority; or

(iii) an adjacent new town, the development corporation for the new town;

(iv) the area of a Scottish local authority, that authority;

(j) where it appears to the hazardous substances authority dealing with the application that land in the area of any other hazardous substances authority may be affected, that authority;

(k) where the application relates to land in an area to which section 28(1) of the Wildlife and Countryside Act 1981(10) applies (sites of special scientific interest) or where it appears to the hazardous substances authority dealing with the application that an area of particular natural sensitivity or interest may be affected, in England, Natural England, or in Wales, the Natural Resources Body for Wales;

(l) where the application relates to land in an area of coal working notified to the hazardous substances authority by the Coal Authority, the Coal Authority; and

(m) where the application relates to land which is used for disposal or storage of controlled waste, the waste disposal authority concerned, where that authority is not also the hazardous substances authority.

(2) The hazardous substances authority must also, before determining an application for hazardous substances consent, consult any other persons, including any non-governmental organisation promoting environmental protection, who are affected or likely to be affected by, or have an interest in, the application, and who in the authority’s opinion are unlikely to become aware of the application through the notices under regulation 6.

(3) When consulting under paragraph (1) or (2) of this regulation, the hazardous substance authority must within seven days of receiving an application—

(a) notify in writing the body or person concerned that they have received an application for hazardous substances consent and inform them 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 or to consultations between Member States in accordance with Article 14(3) of the Directive;

(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 not be less than 28 days beginning with the day after the day on which the person or body is notified that a valid application has been received by 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) ensure that a copy of the application is available for inspection at the offices of the hazardous substances authority during the period or periods allowed for making representations.

(4) Where a hazardous substances authority is required to consult a body under—

(a) paragraph (1)(a), or

(b) paragraph (1)(k), where it appears to the authority that an area of particular natural sensitivity or interest may be affected,

the exception in paragraph (1) does not apply.

(5) In this regulation—

“area of particular natural sensitivity or interest” has the same meaning as it has for the purposes of the Directive;

“controlled waste” has the meaning given to that expression by section 75(4) of the Environmental Protection Act 1990(11) and “waste disposal authority” is to be construed in accordance with section 30(2)(12) of that Act;

“county”, “county borough” and “district” have the same meanings as in the Local Government Act 1972; and

“Scottish local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(13).

Determination of applications for hazardous substances consent

11.—(1) A hazardous substances authority must not determine an application for hazardous substances consent before the expiry of the period or periods allowed for making representations under regulations 6(1) and 10(3).

(2) In determining an application for hazardous substances consent, the hazardous substances authority must take into account the results of consultations held in relation to that application.

(3) Subject to paragraph (1), a hazardous substances authority must, within the period specified in paragraph (4), give the applicant written notice of their decision or notice that the application has been referred to the Secretary of State for determination.

(4) The period specified for the purposes of paragraph (3) is—

(a) a period of 8 weeks from the date when the application is received by the hazardous substances authority; or

(b) except where the applicant has already given notice of appeal to the Secretary of State, such extended period as may be agreed in writing by the applicant and the hazardous substances authority.

(5) When a hazardous substances authority give notice of a decision on an application the notice must, where hazardous substances consent is refused or is granted subject to conditions—

(a) state, clearly and precisely, their full reasons for the refusal or for any condition imposed; and

(b) include a statement to the effect that if the applicant is aggrieved by the decision the applicant may appeal to the Secretary of State under section 21 within 6 months of the date of the notice of the decision, or such longer period as the Secretary of State may at any time allow.

(6) The hazardous substances authority must, as soon as is practicable, inform the following persons of the terms of their decision—

(a) the Health and Safety Executive;

(b) where the land to which the decision relates is, or is on, a nuclear site, the Office for Nuclear Regulation;

(c) the district or London borough council or county council concerned, where that council is not the hazardous substances authority;

(d) any other consultees who have made representations to them on the application; and

(e) any owners who have made representations to them on the application.

(7) The hazardous substances authority must make available for inspection at the offices of the hazardous substances authority—

(a) the content of the decision and the reasons on which it is based, including any subsequent updates; and

(b) the results of the consultations held before the decision was taken and an explanation of how they were taken into account in that decision.

Notice of reference of applications to the Secretary of State

12.  On referring any application to the Secretary of State pursuant to a direction under section 20, a hazardous substance authority must serve on the applicant a notice—

(a) informing the applicant that the application has been referred to the Secretary of State;

(b) setting out the reasons given by the Secretary of State for issuing the direction; and

(c) containing a statement that the Secretary of State will, if the applicant so desires, give the applicant an opportunity of appearing before and being heard by a person appointed by the Secretary of State for that purpose.

Appeals

13.—(1) An appeal to the Secretary of State under section 21 must be made within 6 months of—

(a) the date of the notice of the decision giving rise to the appeal, or

(b) in the case of an appeal under section 21(2), the expiry of the period specified in regulation 11(4),

or within such longer period as the Secretary of State may, at any time, allow.

(2) An appeal under section 21 must—

(a) be made to the Secretary of State on a form obtained from the Secretary of State;

(b) include the information specified in the form; and

(c) be accompanied by the documents specified in paragraph (3) and the certificate required by paragraph (4).

(3) The documents mentioned in paragraph (2)(c) are—

(a) the application made to the hazardous substances authority which has occasioned the appeal;

(b) any notices and certificates required by regulations 6 and 7 which accompanied the application;

(c) any correspondence with the authority relating to the application; and

(d) the notice of decision, if any.

(4) An appeal under section 21 must not be entertained by the Secretary of State unless it is accompanied by whichever of certificates A to D is appropriate in Form 2, signed by or on behalf of the appellant.

(5) The required notice referred to in certificates B and C must, in the case of an appeal under section 21, be a notice given on Form 4.

(6) The appellant must send a copy of the completed notice of appeal form and accompanying certificate to the hazardous substances authority at the same time as the appeal is made to the Secretary of State.

PART 4 Enforcement

Hazardous substances contravention notices

14.—(1) A hazardous substances contravention notice must identify the land to which the notice relates, whether by reference to a plan or otherwise.

(2) The persons prescribed pursuant to section 24(4)(c) (other persons to be given notice) are all persons having an interest in the land which in the opinion of the authority issuing the notice is materially affected by the notice.

(3) Every copy of a hazardous substances contravention notice served pursuant to section 24(4) must be accompanied by a statement setting out—

(a) the hazardous substances authority’s reasons for issuing the notice; and

(b) the right of appeal to the Secretary of State against the notice, and the persons by whom, grounds upon which and time within which such an appeal may be brought under section 174 of the principal Act.

Appeals against hazardous substances contravention notices

15.  Sections 174, 175(3) and (6), 176 and 177 of the principal Act apply to appeals against hazardous substances contravention notices, subject to the modifications set out in Part 1 of Schedule 4.

Appeals: supplementary

16.—(1) A person who appeals against a hazardous substances contravention notice must, at the same time as notice of the appeal is given or sent to the Secretary of State under section 174(3) of the principal Act, serve on the hazardous substances authority a copy of the notice of appeal and accompanying material required by section 174(4) of that Act.

(2) The hazardous substances authority must, within 28 days of being served with the notice of appeal, serve on the Secretary of State and on the appellant a statement—

(a) setting out their submissions in relation to each ground of appeal; and

(b) indicating whether they would be prepared to grant hazardous substances consent for the presence on, over or under the land of any quantity of the hazardous substance to which the hazardous substances contravention notice relates and, if so, particulars of the conditions, if any, which they would wish to impose on the consent.

(3) The hazardous substances authority must, within the 28 day period referred to in paragraph (2), give notice of the appeal to occupiers of properties in the locality of the site to which the hazardous substances contravention notice relates.

Effect of hazardous substances contravention notices, etc

17.  Sections 178 to 181 of the principal Act have effect in relation to hazardous substances contravention notices, subject to the modifications set out in Part 2 of Schedule 4.

Enforcement register

18.  Section 188 of the principal Act (register of enforcement and stop notices) has effect in relation to hazardous substances contravention notices, subject to the modifications set out in Part 3 of Schedule 4.

Validity

19.—(1) Sections 285 and 289 of the principal Act apply to appeals against hazardous substances contravention notices, subject to the modifications set out in Part 4 of Schedule 4.

(2) Section 25(2) is subject to any order under section 289(4A) of the principal Act, as applied by paragraph (1).

PART 5 Other matters relating to hazardous substances consent and enforcement

Consents register

20.—(1) The register required by section 28(1) must be kept in 6 parts—

(a) Part 1 must contain details of every application for hazardous substances consent made to the hazardous substances authority and not finally determined;

(b) Part 2 must contain, in respect of every application for hazardous substances consent made to the hazardous substances authority—

(i) details of the application;

(ii) particulars of any direction given under section 20;

(iii) details of the decision (if any) of the authority, including the date of the decision; and

(iv) the reference number, date and effect of any decision of the Secretary of State, whether on a reference under section 20 or on an appeal under section 21;

(c) Part 3 must contain details of every order revoking or modifying hazardous substances consent made by the hazardous substance authority and the date and effect of any confirmation by the Secretary of State in accordance with section 15;

(d) Part 4 must contain, in respect of every hazardous substances consent deemed to be granted under section 11(3), details of the claim;

(e) Part 5 must contain details of every hazardous substances consent deemed to be granted by virtue of a direction given by a government department under section 12; and

(f) Part 6 must contain details of any direction under section 27 sent to the authority by the Secretary of State.

(2) Where the Secretary of State grants hazardous substances consent under section 177 of the principal Act on the determination of an appeal against a hazardous substances contravention notice, the hazardous substances authority for the land covered by the consent must enter the date and effect of that decision in Part 2 of the register.

(3) The register must include an index to enable any person to trace an entry in the register.

(4) Every entry in the register must be made within 14 days of the relevant information being available to the hazardous substances authority.

(5) The register must be kept at the principal office of the hazardous substances authority.

(6) For the purposes of paragraph (1)(a), an application is not to be treated as finally determined unless—

(a) it has been decided by the hazardous substances authority (or the period specified in regulation 11(4) has expired without their giving a decision) and the period specified in regulation 13(1) has expired without any appeal having been made to the Secretary of State;

(b) it has been referred to the Secretary of State under section 20 or an appeal has been made to the Secretary of State under section 21, the Secretary of State’s decision has been issued and the period of 6 weeks specified in section 22(1) has expired without any application having been made to the High Court under that section;

(c) an application has been made to the High Court under section 22 and the matter has been determined, either by final dismissal of the application by a Court or by the quashing of the Secretary of State’s decision and the issue of a fresh decision (without a further application under section 22 being made); or

(d) it has been withdrawn by the applicant before being determined; or

(e) an appeal under section 21 or an application under section 22 has been withdrawn by the applicant before being determined.

(7) Where this regulation requires details of an application, direction, consent, claim form or notice to be provided in the register, the following must be provided—

(a) details of the person in control of the land to which the application, direction, consent, claim form or notice relates, where applicable; and

(b) the category in Column 1 of Part 1 of Schedule 1 to these Regulations in which any substance that is the subject of the application, direction, consent, claim form or notice falls.

Fees for applications

21.—(1) Subject to paragraph (3), a fee must be paid to a hazardous substances authority on an application for hazardous substances consent as follows—

(a) if section 13(1) applies (new consent without previous conditions), £200;

(b) if section 13(1) does not apply and the quantity specified in the application as the maximum quantity proposed to be present exceeds twice the controlled quantity, £400; and

(c) in all other cases, £250.

(2) Subject to paragraph (3), a fee must be paid to a hazardous substances authority on an application for the continuation of hazardous substances consent under section 17(1) of £200.

(3) Where applications relating to the same site are made to two or more hazardous substances authorities, a fee is to be paid only to the authority in whose area the largest part of the site is situated and the amount payable is the amount that would have been payable if the application had fallen to be made to one authority in relation to the whole site.

(4) Any fee due in respect of an application must accompany the application when it is made to the hazardous substances authority.

(5) Any fee paid pursuant to this regulation must be refunded if the application is rejected as invalidly made.

Fees for deemed applications

22.—(1) Subject to paragraph (5), a fee must be paid to the Secretary of State in every case where an application for hazardous substances consent is deemed to have been made by virtue of section 177(5) of the principal Act (in consequence of an appeal under section 174 of that Act against a hazardous substances contravention notice).

(2) The fee mentioned in paragraph (1) is payable by every person who has made a valid appeal against the relevant hazardous substances contravention notice and whose appeal has not been withdrawn before the date on which the Secretary of State issues a notice under paragraph (4).

(3) Subject to paragraph (7), the fee payable is the amount which would be payable under regulation 21 if the application were an application to which that regulation applied.

(4) The fee due must be paid at such time as the Secretary of State may in the particular case specify by notice in writing to the appellant.

(5) This regulation does not apply where the appellant had—

(a) before the date when the hazardous substances contravention notice was issued, applied to the hazardous substances authority for hazardous substances consent for the presence of the quantity of the substance to which the notice relates, and had paid to the authority the fee payable in respect of that application, or

(b) before the date specified in the notice as the date on which it is to take effect, made an appeal to the Secretary of State against the refusal of the hazardous substances authority to grant consent,

and at the date when the relevant notice was issued that application or, in the case of an appeal made before that date, that appeal, had not been determined.

(6) Any fee paid in respect of the deemed application must be refunded to the appellant by the Secretary of State if—

(a) the Secretary of State declines jurisdiction on the relevant appeal on the grounds that it does not comply with one or more of the requirements of subsections (1) to (3) of section 174 of the principal Act;

(b) the Secretary of State dismisses the relevant appeal in exercise of the powers under section 176(3)(a) of the principal Act (on the grounds that the appellant has failed to comply with section 174(4) of that Act);

(c) the Secretary of State allows the relevant appeal and quashes the relevant hazardous substances contravention notice in exercise of the powers under section 176(3)(b) of the principal Act (on the grounds that the hazardous substances authority have failed to comply with regulation 16(2) of these Regulations);

(d) the relevant appeal is withdrawn with the result that there are at least 21 days between the date on which notice in writing of the withdrawal is received by the Secretary of State and—

(i) the date (or in the event of postponement, the latest date) appointed for the holding of an inquiry or hearing into that appeal; or

(ii) in the case of an appeal which is being dealt with by written representations, the date (or in the event of postponement, the latest date) appointed for the inspection of the site to which the notice relates;

(e) the hazardous substances authority withdraws the relevant hazardous substances contravention notice before it takes effect, or the Secretary of State decides that the notice is a nullity;

(f) the Secretary of State allows the relevant appeal on any of the grounds set out in section 174(2)(b) to (e) of the principal Act; or

(g) the Secretary of State allows the relevant appeal on the ground that the relevant hazardous substances contravention notice is invalid, or that it contains a defect, error or misdescription which cannot be corrected under section 176(1)(a) of the principal Act.

(7) Where a hazardous substances contravention notice is varied under section 176(1) of the principal Act otherwise than to take account of a grant of hazardous substances consent under section 177(1), and the fee calculated in accordance with paragraph (3) would have been a lesser amount if the original notice had been in the terms of the varied notice, the fee payable is that lesser amount and any excess amount already paid must be refunded.

(8) In determining a fee under paragraph (7) no account is to be taken of any change in fees which takes effect after the making of the deemed application.

Application of the Act to hazardous substances authorities

23.—(1) Any application by a hazardous substances authority for hazardous substances consent must be made to the Secretary of State.

(2) Regulations 5 to 8, 10 and 11(2) apply to the making of such an application as they apply to applications made to a hazardous substances authority.

(3) For the purpose of regulation 20, an application made to the Secretary of State by a hazardous substances authority is to be treated as an application made to the hazardous substances authority and referred to the Secretary of State under section 20.

(4) Section 9 (other than subsection (2)(e)) applies in relation to an application made to the Secretary of State by a hazardous substances authority as it applies in relation to an application made to a hazardous substances authority.

(5) For the purpose of section 22, a decision of the Secretary of State on an application made to him by a hazardous substances authority is to be treated as a decision under section 20.

PART 6 Policies and public participation

Policies

24.—(1) In formulating any relevant policy, the Secretary of State must ensure that the following matters are taken into account—

(a) the objectives of preventing major accidents and limiting the consequences of such accidents for human health and the environment; and

(b) the matters referred to in Article 13(2) of the Directive.

(2) In this regulation, “relevant policy” means—

(a) any national policy statement designated under section 5(1) of the Planning Act 2008(14); and

(b) any policy falling within section 19(2)(a) of the Planning and Compulsory Purchase Act 2004(15) where in the opinion of the Secretary of State that policy concerns matters affecting the risks or consequences of a major accident.

Plans and programmes

25.—(1) Subject to paragraph (3), this regulation applies where a responsible authority proposes to prepare, modify or review a relevant plan or programme.

(2) Where this regulation applies, the responsible authority must—

(a) take such measures as it considers appropriate to ensure that public consultees are given early and effective opportunities to participate in the preparation, modification or review of the relevant plan or programme; and

(b) in doing so, take such measures as it considers appropriate to ensure that—

(i) public consultees are informed of any proposals to prepare, modify or review a relevant plan or programme;

(ii) relevant information about such proposals is made available to public consultees, including information about the right to participate in decision-making and about the authority to which comments or questions may be submitted;

(iii) public consultees are entitled to express comments and opinions when all options are open before decisions on the relevant plan or programme are made; and

(iv) any periods provided for public participation under this regulation allow public consultees sufficient time to prepare and participate in decision-making in relation to the relevant plan or programme;

(c) take into account the results of the public participation in making those decisions; and

(d) take such measures as it considers appropriate to inform the public consultees about the decisions taken and the reasons and considerations on which those decisions are based, including information about the public participation process.

(3) This regulation does not apply to a relevant plan or programme in relation to which a public participation procedure is carried out under Part 3 of the Environmental Assessment of Plans and Programmes Regulations 2004(16).

(4) This regulation applies to a relevant plan or programme relating—

(a) solely to the whole or any part of England; or

(b) to England (whether as to the whole or part) and any other part of the United Kingdom.

(5) Any steps taken before the commencement date in relation to a relevant plan or programme may be treated as steps taken for the purposes of this regulation.

(6) In this regulation—

“public consultees” means persons of whom the responsible authority is aware, including any non-governmental organisation promoting environmental protection, who are affected or likely to be affected by, or have an interest in, the relevant plan or programme in question;

“relevant plan or programme” means a general plan or programme relating to—

(a)

planning for new establishments pursuant to Article 13 of the Directive, or

(b)

new developments around establishments where the siting or developments may increase the risk or consequences of a major accident pursuant to Article 13 of the Directive; and

“responsible authority” means—

(a)

the authority by which or on whose behalf a relevant plan or programme is prepared; and

(b)

where, at any particular time, that authority ceases to be responsible, or solely responsible, for taking steps in relation to the plan or programme, the person who, at that time, is responsible (solely or jointly with the authority) for taking those steps.

Other planning approvals for projects

26.—(1) Subject to paragraph (4), this regulation applies where consent, permission or other authorisation for a relevant project is sought from a competent authority.

(2) A competent authority must, before deciding to give any consent, permission or other authorisation for a relevant project, take such measures as it considers appropriate to ensure that—

(a) the public is informed by public notices or other appropriate means, including electronic media where available, of the following matters early in the procedure for the taking of a decision or, at the latest, as soon as the information can reasonably be provided—

(i) the subject of the relevant project;

(ii) where applicable, the fact that a project is subject to a national or transboundary environmental impact assessment or to consultations between member States in accordance with Article 14(3) of the Directive;

(iii) details of the competent authority responsible for taking the decision, from which relevant information can be obtained and to which comments or questions can be submitted;

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

(v) details of the period for transmitting comments or questions; and

(vi) the nature of possible decisions or, where there is one, the draft decision;

(b) the COMAH competent authority is consulted about the project;

(c) the main reports and advice issued to the competent authority at the time when the public concerned was informed pursuant to paragraph (2)(a) are made available to the public concerned at that time;

(d) the public concerned is entitled to express comments and opinions to the competent authority before a decision is taken; and

(e) the results of the consultations held pursuant to this regulation are taken into account in the taking of a decision.

(3) After deciding whether to give any consent, permission or other authorisation for a relevant project, the competent authority must make available to the public—

(a) the content of the decision and the reasons on which it is based, including any subsequent updates;

(b) the results of the consultations held before the decision was taken and an explanation of how they were taken into account in that decision.

(4) To the extent that the competent authority is already required by any enactment to take any of the actions set out in paragraphs (2) and (3) of this regulation, those paragraphs do not apply.

(5) In this regulation—

“competent authority” means any Minister of the Crown (as defined in section 8(1) of the Ministers of the Crown Act 1975(17)), government department, or local authority with responsibility for deciding whether to give a consent, permission or other authorisation referred to in paragraph (1);

“the public concerned” means persons, including any non-governmental organisation promoting environmental protection, who are affected or likely to be affected by, or have an interest in, the taking of a decision to give the consent, permission or other authorisation referred to in paragraph (1); and

“relevant project” means development falling within paragraphs (e), (f) or (zb) of the Table in Schedule 4 to the Town and Country Planning (Development Management Procedure) (England) Order 2015(18).

(6) In this regulation, a reference to giving consent, permission or other authorisation means—

(a) granting planning permission on an application under Part 3 of the principal Act (control over development);

(b) granting planning permission on an application under section 293A of that Act (urgent Crown development)(19);

(c) granting planning permission, or upholding a decision of the local planning authority to grant planning permission (whether or not subject to the same conditions and limitations as those imposed by the local planning authority), on determining an appeal under section 78 of that Act (right to appeal against planning decisions)(20) in respect of such an application;

(d) granting planning permission under—

(i) section 141(2)(a) of that Act (action in relation to purchase notice); or

(ii) section 177(1)(a) of that Act (grant or modification of planning permission on appeals against enforcement notices);

(e) directing under the following provisions that planning permission is deemed to be granted—

(i) subsection (1), (2) or (2A) of section 90 of that Act (development with government authorisation); or

(ii) section 5(1) of the Pipe-lines Act 1962(21) (provisions with respect to planning permission concerning pipe-lines);

(f) making—

(i) a local development order under section 61A of the principal Act(22);

(ii) a neighbourhood development order under section 61E of that Act(23);

(iii) a special development zone scheme under section 82 of that Act;

(iv) an order designating an enterprise zone under Schedule 32 to the Local Government, Planning and Land Act 1980(24);

(v) a development consent order under section 114 of the Planning Act 2008;

(vi) an order under section 102 of the principal Act (orders requiring discontinuance of use or alteration or removal of buildings or works)(25), including an order made under that section by virtue of section 104 of that Act (powers in relation to section 102 orders) which grants planning permission, or confirming any such order under section 103 of that Act (confirmation of section 102 orders);

(vii) an order under paragraph 1 of Schedule 9 to that Act (order requiring discontinuance of mineral working)(26), including an order made under that paragraph by virtue of paragraph 11 of that Schedule to that Act (powers in relation to orders under Schedule 9), which grants planning permission;

(viii) an order under section 14(1) or section 16(1) of the Harbours Act 1964(27);

(g) directing under the following provisions that if an application is made for planning permission it must be granted—

(i) section 141(3) of the principal Act (action in relation to purchase notice); or

(ii) section 35(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (action in relation to listed building purchase notice)(28);

(h) directing under section 12 of the Act that hazardous substances consent is deemed to be granted;

(i) granting hazardous substances consent under section 20 of the Act; and

(j) granting hazardous substances consent under section 177(1)(a) of the principal Act (as applied to hazardous substances contravention notices, and modified, by regulation 15 and Schedule 4).

(7) In relation to any consent, permission or authorisation falling within paragraph (6) which is capable of being varied or modified, the modification or variation is to be treated as if it is a consent, permission or other authorisation for a relevant project for the purposes of this regulation where that modification or variation authorises development falling with paragraph (zb) of the Table in Schedule 4 to the Town and Country Planning (Development Management Procedure) (England) Order 2015.

Interpretation of Part 6

27.  Expressions appearing both in this Part and in the Directive have the same meaning for the purposes of this Part as they have for the purposes of the Directive.

PART 7 Revocations, amendments, savings, transitional provisions, Crown application and review

Revocations

28.  The following enactments are revoked to the extent specified, subject to the savings and transitional provisions set out in this Part—

(1) Instrument revoked	(2) References	(3) Extent of revocation
The Planning (Hazardous Substances) Regulations 1992	S.I. 1992/656	The Regulations so far as they apply to England
The Planning (Control of Major-Accident Hazards) Regulations 1999	S.I. 1999/981	The Regulations so far as they apply to England
The Town and Country Planning (Application of Subordinate Legislation to the Crown) Order 2006	S.I. 2006/1282	Article 10 so far as it applies to England
The Planning (Hazardous Substances) (Amendment) (England) Regulations 2009	S.I. 2009/1901	The whole Regulations
The Planning (Hazardous Substances) (Amendment) (England) Regulations 2010	S.I. 2010/1050	The whole Regulations
The Explosives Regulations 2014	S.I. 2014/1638	Paragraphs 14(2) and (4) of Part 2 of Schedule 13

Transitional applications and appeals

29.—(1) If an application or appeal relating to a hazardous substances consent made in accordance with the 1992 Regulations has not been determined by the commencement date, the application or appeal is taken to be made under these Regulations.

(2) Anything done under the 1992 Regulations in relation to that application or appeal before the commencement date is taken to be done under these Regulations.

Interpretation of existing consents

30.—(1) In this regulation, “relevant consent” means a hazardous substances consent granted under the 1992 Regulations or a deemed consent claimed before the commencement date under which the following are expressly authorised—

(a) the presence of a category of substance listed in column 1 of part B of Schedule 1 to the 1992 Regulations; or

(b) the presence of a substance named in column 1 of part A of Schedule 1 to the 1992 Regulations.

(2) This regulation applies to a relevant consent where the category or substance referred to in paragraph (1) above—

(a) is not contained in Schedule 1 to these Regulations; or

(b) is differently named or defined under Schedule 1 to these Regulations.

(3) Where this regulation applies references in a relevant consent to a category or substance referred to in paragraph (1) are to be interpreted as if these Regulations had not come into force.

Saving for deemed consent conditions

31.—(1) This regulation applies to any consent that was deemed to be granted under section 11 (deemed hazardous substances consent; established presence) or 30B (Crown application: transitional) before the commencement date.

(2) In relation to any consent to which this regulation applies—

(a) the conditions set out in Schedule 3 of the 1992 Regulations continue to apply (unless any condition was removed following an application under section 13); and

(b) those conditions continue to be interpreted in accordance with regulation 15 (conditions on deemed consent) of the 1992 Regulations.

Notification of other establishments

32.—(1) This regulation applies where—

(a) hazardous substance consent would be required but for the exemption in paragraph 13 of Schedule 2 to these Regulations; and

(b) a hazardous substance authority receives from the person in control of the land to which the notice relates a notice in writing which contains—

(i) details of the location of the land to which the notice relates and the person in control of the land;

(ii) details of the hazardous substances held at the site, including the quantities; and

(iii) an explanation of why paragraph 13 of Schedule 2 to these Regulations applies.

(2) The hazardous substances authority must, as soon as practicable after receiving the notice, send the COMAH competent authority a copy of the notice.

(3) The COMAH competent authority must, within 8 weeks of receiving notification from the hazardous substances authority under paragraph (2), determine whether the notice concerns an establishment within the meaning of the Directive and, if so, notify the local planning authority for the area in which the establishment is located.

Amendments

33.  Schedule 5 to these Regulations has effect.

Application to the Crown

34.  These Regulations apply to the Crown as if, in Schedule 2 to these Regulations, after paragraph 2 there were inserted—

“2A   Hazardous substances consent is not required for the presence of a hazardous substance in, on, over or under land at military establishments, installations or storage facilities.”.

Review

35.—(1) The Secretary of State must from time to time—

(a) carry out a review of these Regulations so far as they implement the land-use aspects of the Directive in relation to England (and in relation to Wales and Scotland, to the extent that these Regulations apply in relation to Wales and Scotland);

(b) set out the conclusions of the review in a report; and

(c) publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the Directive is implemented in other member States.

(3) The report must in particular—

(a) set out the objectives intended to be achieved by the land-use aspects of the Directive and by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of five years beginning with the commencement date.

(5) Reports under this regulation must afterwards be published at intervals not exceeding five years.

Signed by the authority of the Secretary of State for Communities and Local Government

Brandon Lewis

Minister of State

Department for Communities and Local Government

18th March 2015