The HSC regime was devised to provide local authorities with the opportunity to consider the need for curbs on the storage and use of hazardous substances where these were introduced on land in ways which did not require planning permission. It was initially embodied in the Housing and Planning Act 1986, but this was subsequently found to contain drafting defects and apparently unintended restrictive clauses to which the chemical industry objected.
As a result, the Act was replaced by the Planning (Hazardous Substances) Act 1990 (ENDS Report 181, pp 28-9). It is this which a Commencement Order will bring into force on 1 June.1 Allied with the order are regulations specifying the hazardous substances which are to be controlled and setting out procedural requirements,2 together with an explanatory circular.3The legislation applies only in England and Wales. Similar rules have been promised for Scotland, albeit at an unspecified date.
The need to obtain an HSC will apply to installations holding any one of 71 substances listed in a schedule to the regulations where these are present at or above a prescribed "controlled quantity." The substances are those listed in the Notification of Installations Handling Hazardous Substances Regulations 1982, together with a small number of highly reactive or toxic substances listed in the Control of Industrial Major Accident Hazards Regulations 1984. The controlled quantities in the new regulations are mostly, but not always, the same as in the older rules.
An application for an HSC will have to be made on a standard form to a "hazardous substances authority" (HSA) - generally a district council or London borough. Publicity will have to be given to applications so as to enable public representations to be made to the authorities. Applications will have to be determined within eight weeks unless otherwise agreed with the applicant. The regulations prescribe a lengthy list of statutory consultees, including the Health and Safety Executive (HSE) and the National Rivers Authority, which will have 28 days in which to comment on applications.
The legislation does not give HSAs a completely free hand in imposing conditions in HSCs. For example, any conditions relating to how a hazardous substance must be kept or used may be imposed only if the HSE has recommended them, and in general an HSA must not require or permit anything to be done which would be in conflict with health and safety legislation.
The circular adds that, in controlling the location of a hazardous substance within a site, HSAs "should try to avoid imposing undue restrictions on the presence of relatively small amounts of that substance elsewhere on the site."
The circular also makes a point of warning HSAs to think twice before granting HSCs where this would go against the HSE's advice. If they are contemplating doing so they must give the HSE prior notice and allow it 21 days in which to consider whether to ask the Secretary of State to call in the application for his own decision. On the other hand, the circular says that the HSE "will consider recommending call-in action only in cases of exceptional concern or where important policy issues are at stake."
Some 1,500-2,000 existing sites are believed to hold hazardous substances at or above the controlled quantities, but these will not be subject to the full requirements of the new rules. Instead, a system of "deemed" HSCs will apply to them.
Operators of these installations will have until the end of November to claim a deemed HSC. They may do so for a substance which was present on site in the 12 months to 1 June, known as the "establishment period." HSAs have no power to refuse a deemed consent unless they consider that such a claim is invalid.
A number of standard conditions will be included in deemed consents. These will include restrictions, defined in the 1990 Act, on the maximum amounts of hazardous substances allowed on the site in relation to those held previously.
However, a number of other standard conditions have been added by the regulations. These are intended to regulate the place where, and the manner in which, substances may be present, in accordance with practice during the establishment period. The controls will apply both to moveable containers and fixed vessels, and plans of these will have to be submitted with a claim for a deemed HSC in respect of each hazardous substance. Conditions regulating the temperature and pressure at which they may be kept or used in vessels will also apply.
Other provisions of the legislation deal with appeal procedures, revocation and modification of HSCs and the circumstances in which compensation will be payable in such cases, and enforcement of HSCs via hazardous substances contravention notices and other means.
Information about the operation of the new regime will be available to the public via public registers. These will hold applications for HSCs and decisions on them, deemed HSCs, and revocations and modifications. These items must be entered on the registers within 14 days.
The circular also advises on the relationship between the new regime and planning control. Local authorities are urged to include in their development plans policies on the siting of hazardous development and on land use near hazardous installations. They are also advised to leave detailed control over the keeping and use of hazardous substances to HSCs, rather than introduce potentially conflicting requirements via planning conditions.
One complication which the new HSCs will introduce into the current system under which the HSE advises planning authorities on land use in the vicinity of hazardous installations is that, in the case of deemed HSCs, the quantity of hazardous substances permitted on-site may be up to twice that last notified to the HSE under the 1982 regulations - yet it is on these notifications that the HSE will have based its land use planning advice.
According to the circular, the HSE intends to review the "consultation zones" within which proposed developments around hazardous installations are referred to it for comment, "although because of the large number of sites involved this exercise may take some time to complete." In general, it adds, neither the size of the consultation zones nor the advice previously given will be altered, and only at "some" sites "may" an increase in consultation zones be "unavoidable."
Finally, the circular concedes, in some cases the introduction of the full quantity of a hazardous substance permitted under a deemed consent "may result in a contravention of health and safety provisions." In such cases the HSE will inform the local authority. However, it appears that the local authority will be powerless to act, and it would be for the HSE to impose any necessary restrictions.
According to the circular, it is unlikely that there will be more than a few hundred applications for HSCs each year. Since these would be concentrated in a small number of areas, the Government has decided to require all applications for full HSCs to be accompanied by a fee. This will be either £250 or £400, depending on the quantity of substances involved. The fee will suffice, the circular says, to cover local authorities' administration costs, "excluding any special costs that a HSA might choose to incur, such as by engaging consultants." The lack of technical advice in the circular means, however, that many councils may consider it essential to hire consultants if they are to make a proper job of their new responsibilities.