The Manufacture and Storage of Explosives Regulations 2005

These Regulations may be cited as the Manufacture and Storage of Explosives Regulations 2005 and, except as provided by paragraph (2), shall come into force on 26^th April 2005.

The repeal by these Regulations of sections 40(8) and 103 of the 1875 Act comes into force only with the coming into force of the repeal of section 32 of that Act by the Fireworks Act 20032.

In these Regulations —

• “the 1875 Act” means the Explosives Act 18753;

• “the 1974 Act” means the Health and Safety at Work etc. Act 1974;

• “ammonium nitrate blasting intermediate” means non-sensitised mixtures of, primarily, ammonium nitrate and other substances which are not themselves explosive, such as oxidisers and fuels, intended to produce a blasting explosive only after further processing prior to use and classified in accordance with the United Nations Recommendations as falling within Class 5.1;

• “black powder” means an intimate mixture, with or without sulphur, of charcoal or other carbon with potassium nitrate or sodium nitrate, whether the mixture is in meal, granular, compressed or pelletised form, being an explosive substance allocated in accordance with the United Nations Recommendations the U.N. nos. 0027 or 0028;

• “centre point”, in relation to a store or a building, means the centre point of the store or building determined as far as is reasonably possible;

• “Class 1” means Class 1 in respect of explosives or the classification of dangerous goods as set out in the United Nations Recommendations;

• “desensitised explosive” means —

  1. a

     a solid explosive substance which has been wetted with water or alcohol or diluted with one or more other substances; or

  2. b

     a liquid explosive substance which has been dissolved or suspended in water or one or more other substances,

  to form a homogeneous mixture so as to suppress its explosive properties and which, without that treatment, would be classified in accordance with the United Nations Recommendations as falling within Class 1;

• “disposes”, in relation to explosives and explosive-contaminated items, means destroying the explosives or explosive-contaminated items or otherwise rendering them harmless;

• “the Executive” means the Health and Safety Executive;

• “explosive” means —

  1. a

     any explosive article or explosive substance which would —

     1. i

        if packaged for transport, be classified in accordance with the United Nations Recommendations as falling within Class 1; or

     2. ii

        be classified in accordance with the United Nations Recommendations as —

        1. aa

           being unduly sensitive or so reactive as to be subject to spontaneous reaction and accordingly too dangerous to transport, and

        2. bb

           falling within Class 1; or

  2. b

     a desensitised explosive,

  but it does not include an explosive substance produced as part of a manufacturing process which thereafter reprocesses it in order to produce a substance or preparation which is not an explosive substance;

• “explosive article” means an article containing one or more explosive substances;

• “explosives certificate” has the same meaning as in the Control of Explosives Regulations 19914;

• “explosive substance” means a substance or preparation, not including a substance or preparation in a solely gaseous form or in the form of vapour, which is —

  1. a

     capable by chemical reaction in itself of producing gas at such a temperature and pressure and at such a speed as could cause damage to surroundings; or

  2. b

     designed to produce an effect by heat, light, sound, gas or smoke, or a combination of these as a result of a non-detonative, self-sustaining, exothermic chemical reaction;

• “firearm” has the same meaning as it is given in section 57(1) of the Firearms Act 19685;

• “fireworks” means the explosive articles allocated in accordance with the United Nations Recommendations any of the U.N. nos. 0333 to 0337;

• “harbour” means a harbour which is within the jurisdiction of a harbour authority and includes—

  1. a

     the areas of water within the jurisdiction of that harbour authority; and

  2. b

     land within the jurisdiction of, or occupied by, the harbour authority and used in connection with the loading and unloading of ships,

  but does not include the areas of water which are within the jurisdiction not only of the harbour authority but also of another harbour authority and which are used primarily by ships using berths within the harbour of that other harbour authority;

• “harbour authority” has the same meaning as in the Harbours Act 19646;

• “hazard type” means any of hazard type 1 explosive, hazard type 2 explosive, hazard type 3 explosive or hazard type 4 explosive;

• “hazard type 1 explosive” means an explosive which, as a result of, or as a result of any effect of, the conditions of its storage or process of manufacture, has a mass explosion hazard;

• “hazard type 2 explosive” means an explosive which, as a result of, or as a result of any effect of, the conditions of its storage or process of manufacture, has a serious projectile hazard but does not have a mass explosion hazard;

• “hazard type 3 explosive” means an explosive which, as a result of, or as a result of any effect of, the conditions of its storage or process of manufacture, has a fire hazard and either a minor blast hazard or a minor projectile hazard, or both, but does not have a mass explosion hazard;

• “hazard type 4 explosive” means an explosive which, as a result of, or as a result of any effect of, the conditions of its storage or process of manufacture, has a fire hazard or slight explosion hazard, or both, with only local effect;

• “headquarters” means a headquarters for the time being specified in Schedule 2 to the Visiting Forces and International Headquarters (Application of Law) Order 19997;

• “Her Majesty’s Forces” means any of the naval, military or air forces of the Crown, whether raised inside or outside the United Kingdom and whether any such force is a regular, auxiliary or reserve force, and includes any civilian employee of the Ministry of Defence attached to those forces;

• “licence” means a licence for the manufacture or storage of explosives granted under regulation 13 and includes a varied licence;

• “licensee” means a person who has been granted a licence under regulation 13 and includes a person to whom a licence is transferred and a person treated under regulation 21 as being licensed;

• “licensing authority” has the meaning assigned to it by Schedule 1;

• “local authority” means in relation to —

  1. a

     the City of London, the Common Council for the City of London;

  2. b

     an area in the rest of London, the London Borough Council for that area;

  3. c

     an area where there is a fire and rescue authority, that authority;

  4. d

     the Isles of Scilly, the Council of the Isles of Scilly;

  5. e

     an area in the rest of England, the county council for that area or where there is no county council for that area, the district council for that area;

  6. f

     an area in Scotland, the council for the local government area; and

  7. g

     an area in Wales, the county council or the county borough council for that area;

• “manufacture” includes —

  1. a

     in relation to explosive articles, their repair, modification, disassembly or unmaking;

  2. b

     in relation to explosive substances, their reprocessing, modification or adaptation;

  but it does not include the packing, unpacking, re-packing, labelling or testing of explosives or the division of an amount of explosives stored in bulk into smaller amounts and the placing of those smaller amounts into containers;

• “mine” means an excavation or system of excavations, including all such excavations to which a common system of ventilation is provided, made for the purpose of, or in connection with, the getting, wholly or substantially by means involving the employment of persons below ground, of minerals (whether in their natural state or in solution or suspension) or products of minerals;

• “non-sensitised” means giving a negative test result when subjected to Test Series 8 of the Manual of Tests and Criteria, third edition8, supporting the United Nations Recommendations;

• “percussion caps” means items intended for use in small arms ammunition allocated in accordance with the United Nations Recommendations the UN nos. 0044, 0377 or 0378;

• “police force”, for the purposes of regulations 3(4)(d) and (6)(b), 5(3)(d) and 27(6), includes—

  1. a

     the police force known as the British Transport Police Force9;

  2. b

     the special constables appointed as special constables under section 3 of the Special Constables Act 192310 on the nomination of the United Kingdom Atomic Energy Authority11; and

  3. c

     the constabulary to be known as the Civil Nuclear Constabulary by virtue of section 52(1) of the Energy Act 200412;

• “preparation” means a mixture of two or more substances or a solution of any substance or substances;

• “propellant” means a deflagrating explosive used as a propellant in firearms;

• “public consultation zone” means the area around the store or proposed store, or the building where the manufacture of explosives takes place or is proposed to take place, which, from the centre point of the store or building, has a radius equivalent to double the greatest separation distance required by virtue of these Regulations to apply in the case of that store or building;

• “pyrotechnic” means an explosive article or substance of a kind designed to produce an effect by heat, light, sound, gas or smoke, or a combination of any of these, as a result of non-detonative, self-sustaining, exothermic chemical reactions;

• “quarry” has the meaning assigned to it by regulation 3 of the Quarries Regulations 199913;

• “registered” in relation to a person, means a person registered in respect of the storage of explosives under regulation 11 and includes a person treated under regulation 21 as being registered;

• “registration” save in regulation 22 and Schedule 4 means registration under regulation 11 and “certificate of registration” means a certificate issued under regulation 11(3);

• “renewal of a licence” or “renewal of a registration” means respectively the granting of a licence or registration to follow a previous licence or registration without any amendment or gap in time.

• “separation distance” means the distance between the store or the building in which explosives are, or are to be, manufactured and a building, or other place in or at which people are or are likely to be present either all the time or from time to time;

• “ship” includes every description of vessel used in navigation;

• “shooters' powder” means —

  1. a

     black powder,

  2. b

     smokeless powder, or

  3. c

     any other substance or preparation based on potassium nitrate or nitro cellulose, whether in powder, pelletised or granular form, used, or to be used, as a propellant;

• “site” means the whole area under the control of the same person and, for these purposes —

  1. a

     all places adjoining each other under the control of the same person shall be treated as a whole area; and

  2. b

     two or more areas under the control of the same person separated only by a road, railway or inland waterway shall be treated as a whole area;

• “small arms ammunition” means the explosive articles allocated in accordance with the United Nations Recommendations the U.N. nos. 0012, 0014 or 0055 which are intended exclusively for use in small arms;

• “smokeless powder” means an explosive substance allocated in accordance with the United Nations Recommendations the U.N. nos. 0160 or 0161;

• “a store” means a building, enclosed area or metal structure in which explosives are, or are to be, stored;

• “substance” means any natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour;

• “U.N. no.” means United Nations Serial Number, that is to say one of the four-digit numbers devised by the United Nations as a means of identification of types of explosives in accordance with the United Nations Recommendations;

• “United Nations Recommendations” means the United Nations Recommendations on the Transport of Dangerous Goods (based on those originally prepared by the United Nations Committee of Experts on the Transport of Dangerous Goods considered by the Economic and Social Committee of Experts at its twenty-third session (Resolution 645G (XXIII) of 26 April 1957))14 as revised or reissued from time to time;

• “visiting force” has the same meaning as it does for the purposes of any provision of the Visiting Forces Act 195215;

• “water-based”, in relation to explosives, means explosives which are based on water and ammonium nitrate and allocated in accordance with the United Nations Recommendations the U.N . no. 0241; and

• “wholly-owned subsidiary” has the same meaning as it is given by section 736(2) of the Companies Act 198516.

For the purposes of these Regulations, and subject to regulation 3(7), the manufacture or storage of ammonium nitrate blasting intermediate shall be deemed to be the manufacture or storage of an explosive.

For the purposes of measuring of any distance required to be a separation distance by virtue of these Regulations, the distance to be measured shall be the horizontal distance between the outside edge of the store or the building in which the explosives are, or are to be, manufactured and the nearest point of the building or other place which the separation distance applies to.

Any reference in these Regulations to the quantity of an explosive shall be construed as a reference to the net mass of explosive substance and, in the case of any pyrotechnic article, the net mass of the explosive shall, for the purposes of these Regulations, be deemed to be one quarter of the gross mass of the pyrotechnic article or, where the manufacturer, importer or supplier specifies a different net mass amount on the pyrotechnic article, its packaging or a document accompanying the pyrotechnic article, that amount.

Subject to paragraph (7), where, during any transport of any explosive beyond the place where it is stored, that explosive is, or is to be, kept at any place for more than twenty-four hours, that keeping shall be treated as storage within the meaning of these Regulations and the provisions of these Regulations shall apply to that keeping accordingly, notwithstanding any application of the provisions of the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 200417 to that transporting.

Paragraph (6) shall not apply to explosives in respect of which there is in existence an explosives licence granted under regulation 36(1) of the Dangerous Substances in Harbour Areas Regulations 1987)18.

Any reference in the definitions in this regulation of “desensitised explosive”, “explosive substance”, “pyrotechnic” or “substance” to liquid, gas, gaseous form or vapour, means, respectively, liquid, gas, gaseous form or vapour at normal atmospheric temperature and pressure.

In relation to the application of these Regulations to ammonium nitrate blasting intermediate by virtue of regulation 2(2), regulations 10 and 11 shall not apply to the storage of ammonium nitrate blasting intermediate.

To the extent that these Regulations concern the importation of pyrotechnics into the United Kingdom, they shall extend to Northern Ireland24.

For the purposes of paragraph (1), the reference to the manufacture or storage of explosives shall be deemed to include a reference to any handling, on-site transport and testing of explosives which is associated with that manufacture or storage.

In this regulation, “fire or explosion” means unplanned fire or explosion at the site of manufacture or storage.

Subject to paragraphs (2) and (3), every person who stores explosives at a site shall ensure that the relevant separation distance prescribed by Schedule 2 is maintained between a store and a building or other place not within that site to which that Schedule applies.

Paragraph (1) shall not apply to desensitised explosives or explosives which are stored under a licence granted by the Executive in cases where the assent of the local authority was required pursuant to regulation 13(3).

Every person to whom the duty under paragraph (1) applies shall ensure that the separation distance referred to in paragraph (5) is maintained between a store and any building on the site in which the store is situated which is used either for accommodation or for work, but not including any building used for work which is normally unoccupied by any person and is not a store.

The separation distance referred to in paragraph (4) is that which is equal to half the relevant separation distance determined in accordance with Schedule 2.

Any person who disposes of explosives shall ensure, so far as is reasonably practicable, that they are disposed of safely.

Any person who decontaminates explosive-contaminated items shall ensure, so far as is reasonably practicable, that they are decontaminated safely.

Where following a request referred to in paragraph (1)(b) the person who has entered that place without permission refuses to leave that site, a constable or the occupier, his employee or agent may remove that person from the site using reasonable force, if necessary.

“Enter” for the purposes of this regulation, includes entering onto a roof of a store or a building in which explosives are manufactured.

Subject to paragraph (2), no person shall manufacture explosives unless he holds a licence for that manufacture and complies with the conditions of that licence.

Subject to paragraph (2), no person shall store explosives unless he holds a licence for their storage and complies with the conditions of that licence.

The licensing authority shall register the applicant unless any of the grounds for refusing to do so referred to in regulation 15 apply.

Where a licensing authority registers an applicant, it shall issue the applicant with a certificate of registration, in a form approved for the time being for the purposes of this regulation by the Executive.

For the purposes of paragraph (1) no more than one of the exceptions listed in sub-paragraphs (a) to (e) of paragraph (1) shall apply to explosives stored at the same site at the same time, irrespective of the person who is storing them.

Where the registration relates to the storage at a site of pyrotechnic articles which are to be offered for sale at that site, the amount of those pyrotechnic articles which may be kept for any period of time in a sales area at that site shall be restricted to the amount determined in accordance with Schedule 3 and for these purposes and those of Schedule 3, “sales area” means an area where pyrotechnic articles are sold and to which any person who is not an employee of the person who is registered in respect of the storage of those pyrotechnic articles has access.

No application for registration may be made in respect of the storage of explosives at a site at which the manufacture of explosives also takes place or is to take place.

The quantities referred to in paragraph (1) are the maximum quantities of the explosives or explosive articles they respectively relate to which may be present at a registered site at any one time.

Subject to paragraph (3), the licensing authority shall grant a licence unless any of the grounds for refusing to do so referred to in regulation 15 apply.

A licence granted pursuant to this regulation shall be in a form approved for the time being for the purposes of this regulation by the Executive.

In this regulation, “on-site mixing” means the mixing at any place of non-explosive substances or preparations to form an explosive for immediate use at that place.

Where this regulation applies by virtue of regulation 13(3), the Executive shall, subject to regulations 15 and 18, issue the applicant with a draft licence containing the conditions, if any, which the Executive proposes to attach to the licence.

The applicant shall as soon as reasonably practicable send a copy of the application and draft licence to the local authority in whose area the manufacture or storage is proposed to take place.

The local authority shall send a copy of any representations referred to in paragraph (3)(a)(ii) to the applicant as soon as reasonably practicable after receiving them.

In considering whether to assent, the local authority shall have regard only to health and safety matters.

Subject to paragraph (7), the local authority shall, before deciding whether to assent to the application, hold a public hearing within 4 months of the date of its receipt of the copy of the application and draft licence referred to in paragraph (2).

If, after the period of 28 days referred to in paragraph (3)(a)(ii) has elapsed, the local authority has received no objection to the application, or has only received objections which in its opinion are frivolous or immaterial, it may assent to the application without holding a hearing.

The local authority shall notify the applicant and the Executive of its decision within 7 days of making it.

Where the local authority does not respond to the written request within 28 days from the date of the request, the local authority shall be deemed to have assented to the application.

The applicant shall pay a fee to the local authority for the performance by that authority of their functions under this regulation, which fee shall not exceed the sum of the costs reasonably incurred by that authority in performing those functions.

In this regulation, “applicant” means the applicant for a licence or variation of a licence and “application” means his application.

A refusal by the licensing authority, pursuant to paragraph (1), to issue the draft licence referred to in regulation 14(1) shall be treated for the purposes of these Regulations as a refusal of an application for a licence and the provisions of regulation 18 shall apply to a refusal to issue a draft licence as if the references in that regulation to “refuse an application for a licence” included refusing to issue a draft licence.

A licence may be varied on the grounds referred to in paragraph (1)(a) or (b) without the agreement of the licensee, subject to regulation 18.

In this regulation any reference to varying a licence includes varying its conditions.

Representations made for the purpose of paragraph (1) may be made in writing, or both in writing and orally.

Where the licensing authority varies a licence without the agreement of the licensee or revokes a licence or registration, that variation or revocation shall take effect from a date to be determined by the licensing authority which shall be a date after the 28 day period referred to in paragraph (1).

Where the licensee or person who is registered wishes to transfer the licence or, as the case may be, the registration, he shall notify the licensing authority which issued the licence or the registration of the name and address of the proposed transferee at least 28 days before the licence or registration is transferred.

If a licensee or registered person becomes bankrupt or, in the case of a company, goes into liquidation or receivership or has a receiving order made against it, any receiver, trustee in bankruptcy or liquidator shall be treated as being the licensee or registered person.

In proceedings against a person for a contravention of regulation 10(1), it shall be a defence for that person to prove that the storage of explosives without a licence or in breach of a condition of a licence was caused by an emergency being an emergency which that person took all reasonable precautions and exercised all due diligence to avoid.

In proceedings against a person for a contravention of regulation 10(1) where it is alleged against that person that the storage concerned was for a period longer than a period (“the permitted period”) referred to in regulation 10(2)(c), (d), (e) or (f)(i) or (ii), it shall be for that person to prove that the storage concerned was for no longer than the permitted period.

This regulation does not apply to any pyrotechnic named in a list, approved by the Executive, of pyrotechnics falling within the description referred to in paragraph (1).

A contravention of paragraph (1) concerning importation shall be punishable only under the 1974 Act28.

This regulation does not apply to a person who is transporting fireworks on behalf of another person.

Subject to paragraph (2), the Executive may, by a certificate in writing, exempt any person or class of persons or any explosive or class of explosives from any requirement or prohibition imposed by these Regulations, and any such exemption may be granted subject to such conditions and to a limit of time and may be revoked in writing at any time.

The Secretary of State for Defence may, in the interests of national security, by a certificate in writing, exempt any of Her Majesty’s Forces, any visiting force, any headquarters or any civilian employee or class of civilian employees of the Ministry of Defence from all or any of the requirements or prohibitions imposed by these Regulations and any such exemption may be granted subject to conditions and to a limit of time and may be revoked by the said Secretary of State by a further certificate in writing at any time.

A registration effected under section 21 of the 1875 Act which was valid immediately before the relevant date shall be deemed to be a registration under regulation 11 and shall continue in force, notwithstanding the repeal by these Regulations of the said section 21, until the date it was due to expire or it is revoked, whichever is the sooner.

In a case to which paragraph (3) applies, regulation 13(3) shall not apply in relation to an application for a licence made to, and received by, the Executive before 6^th April 2008.

In relation to the application of these Regulations to the manufacture of any ammonium nitrate blasting intermediate by virtue of regulation 2(2), where a person is manufacturing any ammonium nitrate blasting intermediate on the relevant date, regulations 9, 12, 13, and 15 to 23 shall not apply to that manufacture by that person until 6^th April 2008.

The requirements of regulation 5 and Schedule 2 shall not apply until 6^th April 2008 to a police force storing explosives.

The requirements of regulation 5 and Schedule 2 shall not apply until 6^th April 2010 to a person who stores explosives in respect of which storage there is a deemed registration in force on the relevant date.

The requirements of regulation 5 and Schedule 2 shall not apply until 6^th April 2008 to a person who stores explosives in respect of which storage there is a deemed licence in force on the relevant date.

A licence applied for pursuant to paragraph (9) shall not be granted by the Executive unless the Executive is satisfied that it would not be reasonably practicable for the applicant to comply with the separation distances required by regulation 5 and Schedule 2 to which the application relates.

Where, on the relevant date, a person holds more than one deemed licence, each relating to the storage of explosives at separate places within the same site and the aggregate total of explosives allowed to be stored at that site pursuant to those deemed licences exceeds 2 tonnes, that person shall apply before 6^th April 2008 to the Executive, which shall be the licensing authority, for a licence to replace those deemed licences for the storage of any explosives that he wishes to store at that site; and, on the date that a licence is granted pursuant to such an application, any such deemed licence shall be treated as revoked under regulation 17 as from that last mentioned date.

Where an application for a licence pursuant to section 6 of the 1875 Act32 has been made to, and received by, the Executive before the relevant date and the application has not been refused nor a licence granted by that date, the application shall be deemed to be an application for a licence under these Regulations and the provisions of these Regulations shall apply to the application, subject to the paragraph (15) in relation to the application of any requirements of regulations 13(3) and 14 to any such licence application.

An application for an amending licence under section 12 of the 1875 Act which is made to and received by, but not decided by, the Executive before the relevant date, shall be deemed to be an application for a variation of a licence under these Regulations and the provisions of these Regulations shall apply to the application accordingly.

Despite the repeal by these Regulations of section 40 of the 1875 Act, paragraph (9) of that section (as it had effect before the commencement of Schedule 4 to the Placing on the Market and Supervision of Transfers of Explosives Regulations 199333) shall continue to apply to acetylene as it applied before the commencement of these Regulations.

Notwithstanding the repeal by these Regulations of sections 40(4) and 50 of the 1875 Act, Order in Council (No. 9) of 27th November 1875 relating to the Sale of Explosive34 shall continue in force.

The primary legislation specified in Part 1 of Schedule 5 and the secondary legislation specified in Part 2 of that Schedule shall be amended in accordance with the provisions of that Schedule.

The primary legislation specified in column 1 of Part 1 of Schedule 6 shall be repealed to the extent specified in column 3 of that Schedule.

The secondary legislation specified in column 1 of Part 2 of Schedule 6 shall be revoked to the extent specified in column 3 of that Schedule.