Deciding applications for hazardous substances consent
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What does the hazardous substances authority do when it receives an application?
The first thing a hazardous substances authority will do is to make sure the application is in order. This will involve ensuring it meets the requirements set out in the Planning (Hazardous Substances) Regulations 1992. If the application is in order, the hazardous substances authority will acknowledge it. It will place a copy on the register of consent applications, which is available to anyone who wants to see it. If it does not consider the application is in order it will tell the applicant why.
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What expert advice should the hazardous substances authority seek?
Before deciding on a consent application, the hazardous substances authority should consult the Health and Safety Executive, Environment Agency and any other bodies as required by legislation. These include fire and civil defence authorities, other relevant planning authorities and public utilities. Natural England should also be consulted where it appears to the hazardous substances authority that an area of particular natural sensitivity or interest may be affected. The hazardous substances authority must give consultees at least 28 days to comment.
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What is the role of the Health and Safety Executive and Environment Agency?
The role of Health and Safety Executive and the Environment Agency is to advise the hazardous substances authority on the risks arising from the presence of hazardous substances. The Health and Safety Executive has the expertise to assess the risks to people, and the Environment Agency risks to the environment. However, the decision as to whether the risks from hazardous substances are tolerable in the context of existing and potential uses of neighbouring land is made by the hazardous substances authority.
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What will the hazardous substances authority consider in making a decision?
Before reaching a decision, the hazardous substances authority will weigh up all the comments received, including those from the Health and Safety Executive. It will take account of local needs and conditions, the local plan, and any other material considerations.
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What consideration should be given to the Health and Safety Executive’s advice?
In view of its acknowledged expertise in assessing the off-site risks presented by the use of hazardous substances, any advice from Health and Safety Executive that hazardous substances consent should be refused, should not be overridden without the most careful consideration. Where a hazardous substances authority is minded to grant consent against Health and Safety Executive advice, it should notify the Health and Safety Executive and allow 21 days for the Executive to give further consideration. During that period the Health and Safety Executive will consider whether to request the Secretary of State for Communities and Local Government to call-in the application for determination.
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What decision can the hazardous substances authority make on the consent?
It may grant consent, either with or without conditions, or may refuse it. If it refuses consent or grants it subject to conditions, it should provide full reasons for the decision. This will help the applicant to decide whether or not to contest the decision. The requirements for making a decision are set out in the Planning (Hazardous Substances) Act 1990.
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What conditions can be imposed on a consent?
The hazardous substances authority can impose conditions, including how and where substances are kept and the times substances may be present or requiring permanent removal within a certain time.
Conditions on how a substance is to be kept or used should only be imposed if the Health and Safety Executive has advised that such conditions should be imposed. Where an authority is considering imposing a condition restricting where a substance may be present within a site, it should try to avoid imposing undue restrictions on the relatively small amounts of that substance being elsewhere. For example, a condition may allow a hazardous substance to be stored in a moveable container in a different area of a site from where it has previously been stored provided the quantity does not exceed 10 per cent of the controlled quantity set out above. This avoids situations where, for example, relatively small amount of a substance in a moveable container in a different part of the site (e.g. a gas canister to service a staff kitchen), or which is covered by the ‘2% rule’, would otherwise be a breach.
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Who else could decide applications for consent?
The hazardous substances authority will usually decide the application. The Secretary of State also has the power to call in an application for his own determination. This will be very much the exception, for example where an application raises issues of more than local importance. Where an application is called-in, the hazardous substances authority must inform the applicant.
Under the nationally significant infrastructure planning regime hazardous substances consent can be deemed to be granted by a Development Consent Order. The aim in doing so is to provide a ‘one stop shop’ for consenting for nationally significant infrastructure projects. A deemed consent can also be issued in certain circumstances by the Government where consent is required for a development by a statutory undertaker or local authority which requires Government authorisation.
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How long will it take to decide on an application for consent?
A decision should be given within eight weeks from receipt of a valid application. Alternatively, it should be given within any extended period agreed in writing between the applicant and hazardous substances authority. In order to avoid delay it is important that the application contains all of the necessary information. Early discussions between the applicant, Health and Safety Executive and hazardous substances authority can help ensure this.
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What if an applicant is not happy with the decision or the hazardous substances authority is taking too long to reach it?
It is important to consider the reasons for any refusal or conditions. It may be possible to overcome objections by changing the proposal in some way and submitting a new application. Discussions between the hazardous substances authority and applicant can help.
If a hazardous substances authority is taking longer than eight weeks to make a decision it is possible to appeal, although this may take longer than waiting for the authority to make a decision.
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Can applicants appeal against the decision on an application for consent?
An appeal can be made to the Secretary of State if the hazardous substances authority:
- refuses to grant consent;
- refuses an application for a continuation of consent upon change in ownership of part of the land;
- refuses to grant any consent, agreement or approval required by a condition imposed on a consent;
- refuses an application to vary or remove conditions attached to a previous grant of consent;
- grants consent but imposes conditions which are unacceptable to the applicant; or
- fails to reach a decision within the statutory time limit of eight weeks, or any longer period agreed with the applicant.
Hazardous substances consent appeals may be made at any time within six months of the decision or, if no decision has been made, within six months from when a decision should have been given. This gives the applicant time to discuss matters with the hazardous substances authority to see if there is any possibility of finding a way of overcoming its objections bearing in mind that an appeal is intended to be a last resort.