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Planning (Hazardous Substances) (Scotland) Act 1997

1997 CHAPTER 10

ARRANGEMENT OF SECTIONS

Go to Preamble

  1. Administration

    1. 1. Planning authorities: hazardous substances.

  2. Control over presence of hazardous substances

    1. 2. Requirement of hazardous substances consent.

    2. 3. Power to prescribe hazardous substances.

  3. Obtaining hazardous substances consent

    1. 4. Hazardous substances consent: general.

    2. 5. Applications for hazardous substances consent.

    3. 6. Certificates as to interests in land etc.

    4. 7. Determination of applications for hazardous substances consent.

    5. 8. Power to impose conditions on grant of hazardous substances consent.

    6. 9. Deemed hazardous substances consent: established presence.

    7. 10. Deemed hazardous substances consent: government authorisation.

  4. Variation and revocation of consents

    1. 11. Applications for removal of conditions attached to hazardous substances consent.

    2. 12. General power by order to revoke or modify hazardous substances consent.

    3. 13. Confirmation by Secretary of State of section 12 orders.

    4. 14. Compensation in respect of orders under section 12(1).

    5. 15. Revocation of hazardous substances consent on change of control of land.

    6. 16. Determination of applications for continuation of hazardous substances consent.

    7. 17. Compensation on revocation or modification of consent under section 15.

  5. Secretary of State’s powers

    1. 18. Reference of applications to Secretary of State.

    2. 19. Appeals against decisions or failure to take decisions relating to hazardous substances.

    3. 20. Validity of decisions as to applications.

  6. Contraventions of hazardous substances control

    1. 21. Offences.

    2. 22. Power to issue hazardous substances contravention notice.

    3. 23. Hazardous substances contravention notices: supplementary provisions.

    4. 24. Variation of hazardous substances contravention notices.

    5. 25. Interdicts restraining breaches of hazardous substances control.

  7. Miscellaneous provisions

    1. 26. Temporary exemption directions.

    2. 27. Registers etc.

    3. 28. Health and safety requirements.

    4. 29. Fees.

  8. General

    1. 30. Application of this Act to planning authorities.

    2. 31. Exercise of powers in relation to Crown land.

    3. 32. Application for hazardous substances consent in anticipation of disposal of Crown land.

    4. 33. Rights of entry.

    5. 34. Power to issue warrants.

    6. 35. Rights of entry: supplementary provisions.

    7. 36. Application of certain general provisions of principal Act.

    8. 37. Financial provisions.

  9. Supplemental

    1. 38. Interpretation.

    2. 39. Regulations.

    3. 40. Short title, commencement and extent.

  10. Schedule:

    1. Determination of certain appeals by person appointed by Secretary of State.

An Act to consolidate certain enactments relating to special controls in respect of hazardous substances with amendments to give effect to recommendations of the Scottish Law Commission.

[27th February 1997]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Administration

1 Planning authorities: hazardous substances

(1) It shall be the duty of the planning authority to control hazardous substances in accordance with the provisions of this Act.

(2) The duty under subsection (1) applies to an urban development corporation only if they are the planning authority in relation to all kinds of development.

Control over presence of hazardous substances

2 Requirement of hazardous substances consent

(1) Subject to the provisions of this Act, the presence of a hazardous substance on, over or under land requires the consent of the planning authority (in this Act referred to as “hazardous substances consent”).

(2) Subsection (1) does not apply if the aggregate quantity of the substance—

(a) on, over or under the land,

(b) on, over or under other land which is within 500 metres of it and controlled by the same person, or

(c) in or on a structure controlled by the same person any part of which is within 500 metres of it,

is less than the quantity prescribed as the controlled quantity for that substance.

(3) The temporary presence of a hazardous substance while it is being transported from one place to another is not to be taken into account unless it is unloaded.

(4) The Secretary of State may by regulations provide that hazardous substances consent is not required or is only required—

(a) in relation to land of prescribed descriptions;

(b) by reason of the presence of hazardous substances in prescribed circumstances.

(5) Regulations under this section may make different provision for different cases or descriptions of cases.

3 Power to prescribe hazardous substances

(1) For the purposes of this Act the Secretary of State—

(a) shall by regulations specify—

(i) the substances that are hazardous substances, and

(ii) the quantity which is to be the controlled quantity of any such substance, and

(b) may by regulations provide that, except in such circumstances as may be prescribed, all hazardous substances falling within a group specified in the regulations are to be treated as a single substance.

(2) Regulations which—

(a) are made by virtue of subsection (1)(a)(i), or

(b) are made by virtue of subsection (1)(a)(ii) and reduce the controlled quantity of a substance,

may make such transitional provision as appears to the Secretary of State to be appropriate.

(3) Regulations under this section may make different provision for different cases or descriptions of cases.

Obtaining hazardous substances consent

4 Hazardous substances consent: general

(1) Hazardous substances consent—

(a) may be granted on an application under this Act, or

(b) may be deemed to have been granted by virtue of section 9 or 10.

(2) Without prejudice to the provisions of this Act, any hazardous substances consent shall (except in so far as it otherwise provides) enure for the benefit of the land to which it relates and of all persons for the time being interested in the land.

5 Applications for hazardous substances consent

(1) Provision may be made by regulations with respect to—

(a) the form and manner in which applications under this Act for hazardous substances consent are to be made,

(b) the particulars which they are to contain and the evidence by which they are to be verified,

(c) the manner in which they are to be advertised, and

(d) the time within which they are to be dealt with.

(2) Regulations may—

(a) require an applicant for hazardous substances consent or the planning authority or both to give publicity to an application for hazardous substances consent in such manner as may be prescribed;

(b) require the planning authority to conduct appropriate consultations before determining applications for hazardous substances consent;

(c) provide for the manner in which such a consultation is to be carried out and the time within which—

(i) such a consultation;

(ii) any stage in such a consultation,

is to be completed;

(d) require the planning authority to determine applications for hazardous substances consent within such time as may be prescribed;

(e) require the planning authority to give prescribed persons or bodies prescribed information about applications for hazardous substances consent including information as to the manner in which such applications have been dealt with.

(3) In subsection (2) “appropriate consultations” means consultations with the Health and Safety Executive and with such persons or bodies as may be prescribed.

(4) Regulations under this section may make different provision for different cases or descriptions of cases.

6 Certificates as to interests in land etc

(1) Regulations may provide that an application for hazardous substances consent, or an appeal against the refusal of such an application or against the imposition of a condition on such a consent, shall not be entertained unless it is accompanied by a certificate in the prescribed form as to the interests in the land to which the application or appeal relates.

(2) Any such regulations may—

(a) include requirements corresponding to those mentioned in sections 34(1), 35(2) and (4) and 38(2) of the principal Act,

(b) make provision as to who is to be treated as the owner of land for the purposes of any provision of the regulations, and

(c) make different provision for different cases or descriptions of case.

(3) If any person—

(a) issues a certificate which purports to comply with the requirements of regulations made by virtue of this section and which contains a statement which he knows to be false or misleading in a material particular, or

(b) recklessly issues a certificate which purports to comply with those requirements and which contains a statement which is false or misleading in a material particular,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

7 Determination of applications for hazardous substances consent

(1) Subject to the following provisions of this Act, where an application is made to a planning authority for hazardous substances consent, that authority may—

(a) grant hazardous substances consent, either unconditionally or subject to such conditions as they think fit, or

(b) refuse hazardous substances consent.

(2) In dealing with such an application the planning authority shall have regard to any material considerations and, in particular, but without prejudice to the generality of the foregoing—

(a) to any current or contemplated use of the land to which the application relates,

(b) to the way in which land in the vicinity is being used or is likely to be used,

(c) to any planning permission that has been granted for development of land in the vicinity,

(d) to the provisions of the development plan, and

(e) to any advice which the Health and Safety Executive have given following consultations in pursuance of regulations under section 5(2).

(3) If an application relates to more than one hazardous substance, the authority may make different determinations in relation to each.

(4) It shall be the duty of a planning authority, when granting hazardous substances consent, to include in that consent—

(a) a description of the land to which the consent relates,

(b) a description of the hazardous substance or substances to which it relates, and

(c) in respect of each hazardous substance to which it relates, a statement of the maximum amount permitted by the consent to be present at any one time.

8 Power to impose conditions on grant of hazardous substances consent

(1) Without prejudice to the generality of section 7(1), a planning authority may grant hazardous substances consent conditional on the commencement or partial or complete execution of development on the land which is authorised by a specified planning permission or may grant such consent subject to conditions with respect to any of the following—

(a) how and where any hazardous substance to which the consent relates is to be kept or used,

(b) times between which any such substance may be present, and

(c) the permanent removal of any such substance—

(i) on or before a date specified in the consent, or

(ii) before the end of a period specified in it and commencing on the date on which it is granted.

(2) A planning authority may only grant consent subject to conditions as to how a hazardous substance is to be kept or used if the conditions are conditions to which the Health and Safety Executive have advised the authority that any consent they might grant should be subject.

(3) It shall be the duty of a planning authority, when granting hazardous substances consent, to include in that consent, in respect of each hazardous substance to which it relates, a statement of all conditions relating to that substance subject to which the consent is granted.

9 Deemed hazardous substances consent: established presence

(1) Hazardous substances consent deemed to be granted by a planning authority under section 38 of the [1986 c. 63.] Housing and Planning Act 1986 (under which hazardous substances consent is deemed to be granted in certain circumstances where a hazardous substance was present before 1st May 1993) shall continue to have effect notwithstanding the repeal of that section and shall be deemed to be granted by the authority under this section.

(2) Hazardous substances consent which is deemed to be granted under this section is subject to—

(a) the condition that the maximum aggregate quantity of the substance that may be present—

(i) on, over or under the land to which the claim relates,

(ii) on, over or under other land which is within 500 metres of it and controlled by the same person, or

(iii) in or on a structure controlled by the same person any part of which is within 500 metres of it,

at any one time shall not exceed the established quantity, and

(b) such other conditions (if any) as are prescribed for the purposes of this section and are applicable in the case of that consent.

(3) The provisions of this Act (except section 20) shall apply in relation to any hazardous substances consent deemed to be granted under this section as if it had been granted by the planning authority on an application to them.

(4) In this section “established quantity” means, in relation to any land—

(a) where before 1st May 1993 there was a notification in respect of a substance in accordance with any of the [S.I. 1982/1357.] Notification of Installations Handling Hazardous Substances Regulations 1982—

(i) the quantity notified or last notified before that date, or

(ii) a quantity equal to twice the quantity which was so notified or last notified before the start of the period of 12 months immediately preceding that date,

whichever is the greater;

(b) where a notification was not required before that date by any of those Regulations, a quantity exceeding by 50 per cent. the maximum quantity which was present on, over or under the land at any one time within that period.

10 Deemed hazardous substances consent: government authorisation

(1) Where—

(a) the authorisation of a government department is required by virtue of an enactment in respect of development to be carried out by a local authority, or by statutory undertakers who are not a local authority, and

(b) the development would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent,

the department may, on granting that authorisation, also direct that hazardous substances consent for that development shall be deemed to be granted subject to such conditions (if any) as may be specified in the directions.

(2) On granting a consent under section 36 of the [1989 c. 29.] Electricity Act 1989 in respect of any operation or change of use that would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent, the Secretary of State may direct that hazardous substances consent shall be deemed to be granted, subject to such conditions (if any) as may be specified in the directions.

(3) The department or, as the case may be, the Secretary of State, shall consult the Health and Safety Commission before issuing any such directions.

(4) For the purposes of this section development shall be taken to be authorised by a government department if—

(a) any consent, authority or approval to or for the development is granted by the department in pursuance of an enactment,

(b) a compulsory purchase order is confirmed by the department authorising the purchase of land for the purpose of the development,

(c) consent is granted by the department to the appropriation of land for the purpose of the development or the acquisition of land by agreement for that purpose,

(d) authority is given by the department for the borrowing of money for the purpose of the development, or for the application for that purpose of any money not otherwise so applicable, or

(e) any undertaking is given by the department to pay a grant in respect of the development in accordance with an enactment authorising the payment of such grants,

and references in this section to the authorisation of a government department shall be construed accordingly.

(5) The provisions of this Act (except section 20) shall apply in relation to any hazardous substances consent deemed to be granted by virtue of directions under this section as if it had been granted by the Secretary of State on an application referred to him under section 18.

(6) A government department or the Secretary of State shall, as respects any hazardous substances consent deemed to be granted by virtue of directions under this section, send to the planning authority concerned any such information as appears to be required by them for the purposes of a register under section 27.

Variation and revocation of consents

11 Applications for removal of conditions attached to hazardous substances consent

(1) This section applies to an application for hazardous substances consent without a condition subject to which a previous hazardous substances consent was granted or is deemed to have been granted.

(2) On such an application the planning authority shall consider only the question of the conditions subject to which hazardous substances consent should be granted.

(3) If on such an application the planning authority determine—

(a) that hazardous substances consent should be granted subject to conditions differing from those subject to which the previous consent was granted, or

(b) that it should be granted unconditionally,

they shall grant hazardous substances consent accordingly.

(4) If on such an application the planning authority determine that hazardous substances consent should be granted subject to the same conditions as those subject to which the previous consent was granted, they shall refuse the application.

(5) Where—

(a) hazardous substances consent has been granted or is deemed to have been granted for the presence on, over or under land of more than one hazardous substance, and

(b) an application under this section does not relate to all the substances,

the planning authority shall have regard to any condition relating to a substance to which the application does not relate only to the extent that it has implications for a substance to which the application does relate.

(6) Where—

(a) more than one hazardous substances consent has been granted or is deemed to have been granted in respect of the same land, and

(b) an application under this section does not relate to all the consents,

the planning authority shall have regard to any consent to which the application does not relate only to the extent that it has implications for a consent to which the application does relate.

12 General power by order to revoke or modify hazardous substances consent

(1) The planning authority may by order revoke a hazardous substances consent or modify it to such extent as they consider expedient if it appears to them, having regard to any material consideration, that it is expedient to revoke or modify it.

(2) The planning authority may also by order revoke a hazardous substances consent if it appears to them—

(a) that there has been a material change of use of land to which a hazardous substances consent relates,

(b) that planning permission has been granted for development the carrying out of which would involve a material change of use of such land and the development to which the permission relates has been commenced,

(c) in the case of a hazardous substances consent which relates only to one substance, that that substance has not for at least 5 years been present on, over or under the land to which the consent relates in a quantity equal to or exceeding the controlled quantity, or

(d) in the case of a hazardous substances consent which relates to a number of substances, that none of those substances has for at least 5 years been so present.

(3) An order made by virtue of subsection (2)(a) or (b) in the case of a consent relating to more than one substance may revoke it entirely or only so far as it relates to a specified substance.

(4) An order under this section shall specify the grounds on which it is made.

13 Confirmation by Secretary of State of section 12 orders

(1) An order under section 12 shall not take effect unless it is confirmed by the Secretary of State.

(2) The Secretary of State may confirm any such order submitted to him either without modification or subject to such modification as he considers expedient.

(3) Where a planning authority submit any such order to the Secretary of State for his confirmation under this section, the authority shall serve notice of the order—

(a) on any person who is an owner, occupier or lessee of the whole or any part of the land to which the order relates, and

(b) on any other person who in their opinion will be affected by the order.

(4) The notice shall specify the period (which must not be less than 28 days after its service) within which any person on whom it is served may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

(5) If within that period a person on whom the notice is served so requires, the Secretary of State shall, before he confirms the order, give such an opportunity to that person and to the planning authority.

(6) Where an order under section 12 has been confirmed by the Secretary of State, the planning authority shall serve a copy of the order on every person who was entitled to be served with notice under subsection (3).

14 Compensation in respect of orders under section 12(1)

(1) This section applies where an order is made under section 12(1) revoking or modifying a hazardous substances consent.

(2) If, on a claim made to the planning authority within the prescribed time and in the prescribed manner, it is shown that any person has suffered damage in consequence of the order—

(a) by depreciation of the value of an interest in the land to which he is entitled, or

(b) by being disturbed in his enjoyment of the land,

the authority shall pay to that person compensation in respect of that damage.

(3) Without prejudice to subsection (2), any person who carries out any works in compliance with the order shall be entitled, on a claim made as mentioned in that subsection, to recover from the planning authority compensation in respect of any expenses reasonably incurred by him in that behalf.

(4) Any compensation payable to a person under this section by virtue of such an order shall be reduced by the value to him of any timber, apparatus or other materials removed for the purpose of complying with the order.

(5) Sections 85 to 87 of the principal Act (which contain general provisions as to the assessment of and the determination of claims for compensation) shall apply as if compensation under this section were compensation under section 83 of that Act.

15 Revocation of hazardous substances consent on change of control of land

(1) A hazardous substances consent is revoked if there is a change in the person in control of part of the land to which it relates unless an application for the continuation of the consent has previously been made to the planning authority.

(2) Regulations may make provision in relation to applications under subsection (1) corresponding to any provision that may be made by regulations under section 5 or 6 in relation to applications for hazardous substances consent.

16 Determination of applications for continuation of hazardous substances consent

(1) When an application is made under section 15(1) for the continuation of a hazardous substances consent, the planning authority—

(a) may modify the consent in any way they consider appropriate, or

(b) may revoke it.

(2) In dealing with such an application the authority shall have regard to any material consideration and, in particular, but without prejudice to the generality of the foregoing—

(a) to the matters to which a planning authority are required to have regard by section 7(2)(a) to (d), and

(b) to any advice which the Health and Safety Executive have given following consultations in pursuance of regulations under section 15(2).