Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Planning (Control of Major-Accident Hazards) Regulations 1999 and shall come into force on 20th April 1999.

(2) In these Regulations, unless the context otherwise requires–

“the Act” means the Planning (Hazardous Substances) Act 1990 and references to sections are to sections of that Act;

“the Order” means the Town and Country Planning (General Development Procedure) Order 1995(4).

Amendment of the Act

2.—(1) The Act shall be amended as follows.

(2) In section 4 (requirement of hazardous substances consent)–

(a)after subsection (2)(a) insert–

“(aa)on, over or under other land which is controlled by the same person and which, in all the circumstances (including in particular the purposes for which the land and the land mentioned in paragraph (a) is used) forms with the land so mentioned a single establishment;”;

(b)in subsection (2)(b) for the word “it” substitute “the land mentioned in paragraph (a)”;

(c)in subsection (2)(c) for the word “it” substitute “the land mentioned in paragraph (a)”;

(d)after subsection (2) insert–

“(2A) A quantity of a substance which falls within more than one paragraph of subsection (2) shall only be counted once.”;

(e)for subsection (3) substitute–

“(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–

(a)it is unloaded; or

(b)it is present on, over or under land in respect of which there is a hazardous substances consent for any substance, or in respect of which (not taking into account the quantity of the substance being transported) there is required to be such a consent for any substance.”.

Amendment of the Planning (Hazardous Substances) Regulations 1992

3.—(1) The Planning (Hazardous Substances) Regulations 1992(5) shall be amended as follows.

(2) In regulation 2 (interpretation)–

(a)in paragraph (1), after the definition of “buried or mounded vessel”, insert–

““the Directive” means Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances(6);”;

(b)in paragraph (4) for the words “Part D of that Schedule” substitute–

• “the notes to that Schedule.”.

(3) In regulation 3 (hazardous substances and controlled quantities)–

(a)for paragraph (1) substitute–

“3.—(1) Substances, mixtures or preparations–

(a)specified in column 1 of Part A;

(b)falling within a category in column 1 of Part B; or

(c)meeting the description in column 1 of Part C,

of Schedule 1 and present as raw materials, products, by-products, residues or intermediates are hazardous substances for the purposes of the Act.”

(b)paragraph (2) shall be omitted.

(4) For regulation 4 (exemptions) substitute–

“4.—(1) Hazardous substances consent is not required for the temporary presence of a hazardous substance during the period between its being unloaded from one means of transport and loaded onto another while it is being transported from one place to another unless it is present on, over or under land in respect of which there is a hazardous substances consent for any substance, or in respect of which (not taking into account the quantity of the substance being transported) there is required to be such a consent for any substance.

(2) Hazardous substances consent is not required for the presence of a hazardous substance contained in an exempt pipe-line or a service pipe.

(3) Hazardous substances consent is not required for the presence of a hazardous substance which has been unloaded from a ship or other sea going craft in an emergency until the expiry of the period of 14 days beginning with the day on which it was so unloaded; and for the purpose of this paragraph a substance shall be treated as having been unloaded from a craft in an emergency if–

(a)it was unloaded from a craft to which a direction under section 3(1) of the Dangerous Vessels Act 1985(7) (directions by Secretary of State to harbour master) applied; or

(b)it was unloaded from a craft after having been brought into a harbour or harbour area, within the meaning of regulation 2 of the Dangerous Substances in Harbour Areas Regulations 1987(8), without requiring notification under paragraph (1) of regulation 6 of those regulations by virtue of an exemption under paragraph (5) of that regulation.

(4) Hazardous substances consent is not required for the presence of a hazardous substance on, over or under land at a waste land-fill site.

(5) Hazardous substances consent is not required for the presence of a hazardous substance which creates a hazard from ionising radiation if present on, over or under land in respect of which a nuclear site licence has been granted or is required for the purposes of section 1 of the Nuclear Installations Act 1965(9).

(6) The presence of a quantity of a hazardous substance (other than that of a substance numbered 6, 14, 35 and 39 in column 1 of Part A of Schedule 1)–

(a)in a location where it cannot act as an initiator of a major accident elsewhere on the relevant site; and

(b)which is equal to or less than two per cent. of the relevant controlled quantity for that substance,

shall not be taken into account when calculating the quantity of a hazardous substance present, on, over or under land for any purpose of the Act or these Regulations.

(7) The presence of a substance to which paragraphs (1) to (5) apply shall not be taken into account when calculating the quantity of a hazardous substance present on, over or under land for any purpose of the Act or these Regulations.

(8) In this regulation–

(a)“exempt pipe-line” means a pipe-line used to convey a hazardous substance to or from a site, but does not include–

(i)that part of the pipe-line on, over, or under a site to which it has an outlet or inlet;

(ii)a service pipe;

(b)“service pipe” means a pipe-line used by a public gas transporter (within the meaning of section 7(1) of the Gas Act 1986(10)) to convey gas to an individual consumer from a main of that transporter;

(c)“major accident” means an occurrence (including in particular, a major emission, fire or explosion) resulting from uncontrolled developments in the course of any operation carried out on, over or under land in respect of which there is or is required to be a hazardous substances consent and leading to serious danger to human health or the environment, immediate or delayed, and involving one or more hazardous substances;

(d)the expressions “initiator”, “major emission, fire or explosion”, “resulting from uncontrolled developments”, “leading to serious danger to human health or the environment, immediate or delayed”, “waste land-fill site” and “ionising radiation” have the same meaning as in the Directive.”.

(5) In regulation 10 (consultation before the grant of hazardous substances consent)–

(a)in paragraph (1)(l) for the words “, in England, the Nature Conservancy Council” substitute–

“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, the Nature Conservancy Council for England”;

(b)After paragraph (3) add–

“(4) In paragraph (1)(l) “area of particular natural sensitivity or interest” has the same meaning as in the Directive.

(5) Where a hazardous substances authority is required to consult a body under paragraph–

(a)(1)(a) or (1)(e); or

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

the exception in paragraph (1) shall not apply.”.

(6) In regulation 16 (interpretation of deemed consent provisions)–

(a)for each reference to “Table C” substitute “Table B”;

(b)in paragraph (2) for the words “71 in column 1 of Schedule 1” substitute–

• “32 in column 1 of Part A of Schedule 1”.

(7) For Schedule 1 (Hazardous Substances and Controlled Quantities), substitute the new Schedule 1 set out in Schedule 1 to these Regulations.

(8) In Schedule 2 (Prescribed Forms, Notices and Certificates) for forms 1 (general application for hazardous substances consent), 2 (application for hazardous substances consent without a condition imposed on a previous consent) and (application for continuation of hazardous substances consent following a change in control of part of the land) and 8 (claim for deemed consent) substitute the new forms 1, 2 and 8 set out in Schedule 2 to these Regulations.

(9) In Schedule 3 (Deemed Consent Conditions)–

(a)for each reference to “Table C” substitute “Table B”;

(b)in paragraph 7(2) omit the word “twice”.

Transitional provisions

4.—(1) For the purposes of the transition to the amendments made by regulations 2 and 3, sections 11 (deemed hazardous substances consent: established presence) and 26 (transitional exemptions) shall apply with the following modifications.

(2) In section 11–

(a)in subsection (1), after the words “establishment period” insert–

• “for which hazardous substances consent was not required during that period,”;

(b)in subsection (3), for the words “(4) to” substitute “(5) and”;

(c)subsection (4) shall be omitted;

(d)at the beginning of subsection (5) omit, “If at the relevant date such notification was not so required, hazardous” and insert “Hazardous”;

(e)in subsection (7)(a)–

(i)for sub-paragraphs (ii) and (iii) substitute–

“(ii)on, over or under other land which is controlled by the same person and which, in all the circumstances (including in particular the purposes for which the land and the land mentioned in sub-paragraph (i) is used) forms with the land so mentioned a single establishment;

(iii)on, over or under other land which is within 500 metres of the land mentioned in sub-paragraph (i) and controlled by the same person; or

(iv)in or on a structure controlled by the same person any part of which is within 500 metres of the land mentioned in sub-paragraph (i),”

(ii)at the end of the subsection, add–

“and in calculating whether the established quantity is exceeded, a quantity of a substance which falls within more than one sub-paragraph of this paragraph shall only be counted once;”;

(f)for subsection (8) substitute–

“(8) In this section–

“establishment period” means the period of 12 months immediately preceding the relevant date;

“established quantity” means in relation to any land, the maximum quantity which was present on, over or under the land at any one time within the establishment period;

“the relevant date” means the date on which the Planning (Control of Major-Accident Hazards) Regulations 1999 came into force;

“the transitional period” means the period of 6 months beginning with the relevant date.”.

(3) In section 26(11)–

(a)in subsection (1), for paragraphs (a) to (c) substitute–

“(a)the substance was present on, over or under the land at any time within the establishment period and was not a substance or quantity of substance for which hazardous substances consent was required before the relevant date; and

(b)the substance has not been present during the transitional period in a quantity greater in aggregate than the established quantity.”.

(b)subsection (2) shall be omitted.

Amendment of the Town and Country Planning (Development Plan) Regulations 1991

5.—(1) The Town and Country Planning (Development Plan) Regulations 1991(12) shall be amended as follows.

(2) In regulation 2 (interpretation)–

(a)in paragraph (1), after the definition of “by local advertisement” insert–

““the Directive” means Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances;”;

(b)after paragraph (3) add–

“(4) the expressions used in regulation 9(1)(e) and (f) have the same meaning as in the Directive.”.

(3) In regulation 9(1) (regard to be had to certain matters and statement of regard)–

(a)at the end of paragraph (c) delete “and”;

(b)after paragraph (d)(13) add–

“and;

(e)the objectives of preventing major accidents and limiting the consequences of such accidents; and

(f)the need;

(i)in the long term, to maintain appropriate distances between establishments and residential areas, areas of public use and areas of particular natural sensitivity or interest; and

(ii)in the case of existing establishments, for additional technical measures in accordance with Article 5 of the Directive so as not to increase the risks to people.”.

Amendment of the Town and Country Planning (General Development Procedure) Order 1995

6.—(1) The Order shall be amended as follows.

(2) In article 10 (consultations before the grant of permission)–

(a)after paragraph (1)(iii) add–

“(1A) The exception in article 10(1)(iii) shall not apply where, in the opinion of the local planning authority, development falls within paragraph (zb) of the table below.”.

(b)after paragraph (za)(14) of the table add–

(3) In Article 10(2) of the Order–

(a)at the end of paragraph (k), delete “and”;

(b)after paragraph (l)(15) add–

“; and

(m)the expressions used in paragraph (zb), have the same meaning as in Council Directive 96/82/EC on the control of major accident hazards involving dangerous substances.”.

Regulation 3(7)

SCHEDULE 1

Regulation 3

“SCHEDULE 1HAZARDOUS SUBSTANCES AND CONTROLLED QUANTITIES

PART ANAMED SUBSTANCES

NOTES TO PART A

1.  Ammonium Nitrate

This applies to ammonium nitrate and ammonium nitrate compounds in which the nitrogen content as a result of the ammonium nitrate is more than 28 per cent. by weight (compounds other than those referred to in Note 2) and to aqueous ammonium nitrate solutions in which the concentration of ammonium nitrate is more than 90 per cent. by weight.

2.  Ammonium Nitrate

This applies to simple ammonium nitrate based fertilisers which conform with the requirements of the Fertilisers Regulations 1991(17) and to composite fertilisers in which the nitrogen content as a result of the ammonium nitrate is more than 28 per cent. in weight (a composite fertiliser contains ammonium nitrate with phosphate or potash, or phosphate and potash).

3.  Polychlorodibenzofurans and polychlorodibenzodioxins

The quantities of polychlorodibenzofurans and polychlorodibenzodioxins are calculated using the following factors:

T = Tetra; P = Penta; Hx = Hexa; Hp = Hepta; O = Octa

Entry number 63

4.  The controlled quantity of 25 tonnes in column 2 of entry 63 refers, in the case of a mixture of substances, to the quantity of substances within that mixture held above their boiling point (measured at 1 bar absolute).

PART BCATEGORIES OF SUBSTANCES AND PREPARATIONS NOT SPECIFICALLY NAMED IN PART A

NOTES TO PART B

1.  Substances and preparations shall be classified for the purpose of this Schedule according to regulation 5 of the Chemicals (Hazard Information and Packaging for Supply) Regulations 1994(20) (“CHIP”) whether or not the substance or preparation is required to be classified for the purposes of those Regulations, or, in the case of a pesticide approved under the Food and Environment Protection Act 1985(21) in accordance with the classification assigned to it by that approval.

2.  An “explosive” means:

(a)(i)a substance or preparation which creates the risk of an explosion by shock, friction, fire or other sources of ignition (risk phrase(22) R2);

(ii)a pyrotechnic substance is a substance (or mixture of substances) designed to produce heat, light, sound, gas or smoke or a combination of such effects through non-detonating self-sustained exothermic chemical reactions; or

(iii)an explosive or pyrotechnic substance or preparation contained in objects;

(b)a substance or preparation which creates extreme risks of explosion by shock, friction, fire or other sources of ignition (risk phrase R3).

3.  “Flammable”, “highly flammable” and “extremely flammable” in categories 6, 7, 8 and 9 mean:

(a)flammable liquids:

substances and preparations having a flash point equal to or greater than 21°C and less than or equal to 55°C (risk phrase R10), supporting combustion;

(b)highly flammable liquids:–

(i)substances and preparations which may become hot and finally catch fire in contact with air at ambient temperature without any input of energy (risk phrase R17),

• substances which have a flash point lower than 55°C and which remain liquid under pressure, where particular processing conditions, such as high pressure or high temperature, may create major-accident hazards;

(ii)Substances and preparations having a flash point lower than 21°C and which are not extremely flammable (risk phrase R11, second indent);

(c)extremely flammable gases and liquids:–

(i)liquid substances and preparations which have a flash point lower than 0°C and the boiling point (or, in the case of a boiling range, the initial boiling point) of which at normal pressure is less than or equal to 35°C (risk phrase R12, first indent), and

(ii)gaseous substances and preparations which are flammable in contact with air at ambient temperature and pressure (risk phrase R12, second indent), whether or not kept in the gaseous or liquid state under pressure, excluding liquefied extremely flammable gases (including liquefied petroleum gas) and natural gas referred to in Part A, and

(iii)flammable liquid substances and preparations maintained at a temperature above their boiling point.

NOTES TO PARTS A AND B

1.  Mixtures and preparations shall be treated in the same way as pure substances provided they remain within the concentration limits set according to their properties under the relevant provisions specified in CHIP, unless a percentage composition or other description is specifically given.

2.  In the case of substances and preparations with properties giving rise to more than one classification the lowest thresholds shall apply.

3.  Where a substance or group of substances listed in Part A also falls within a category of Part B, the controlled quantities set out in Part A must be used.

4.  The addition of hazardous substances to determine the controlled quantity shall be carried out according to the following rule:

if the sum

then the controlled quantity of each of the substances which are added together in accordance with each of paragraphs 5(a) to (c) below shall be deemed to be present for the purposes of sections 4(2), 14(2)(c), 23(2)(a), and of section 11(5) (as applied by the Planning (Control of Major-Accident Hazards) Regulations 1999) of the Act and of section 181 (enforcement notice to have effect against subsequent development) of the principal Act as substituted by paragraph 8 of Schedule 4.

5.  The addition rule in paragraph 4 will apply for the following circumstances:–

(a)for substances and preparations appearing in Part A at quantities less than their individual controlled quantity present with substances having the same classification from Part B, and the addition of substances and preparations with the same classification from Part B;

(b)for the addition of categories 1, 2 and 10 from Part B present together;

(c)for the addition of categories 3, 4, 5, 6, 7, 8 and 9 from Part B present together.

PART CSUBSTANCES USED IN AN INDUSTRIAL CHEMICAL PROCESS

NOTES TO PART C

1.  The expression “which it is believed may be generated during loss of control of an industrial chemical process” has the same meaning as in the Directive.

2.  Where a substance falling within Part A or B also falls within Part C, the classification with the lowest controlled quantity shall apply, subject to note 3 to the notes to Part A and B.”

Regulation 3(8)

SCHEDULE 2PRESCRIBED FORMS

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement, in relation to town and country planning in England and Wales, Article 12 of Council Directive 96/82/EC (O.J. No. L. 10, 14.1.1997, p. 13) on the control of major-accident hazards involving dangerous substances.

The main requirements of Article 12 of the Directive, are as follows. The requirement to ensure that the objectives of preventing major accidents and limiting their consequences are taken into account in land-use planning policies and that these objectives are pursued through controls. The requirement to ensure that planning authorities set up appropriate consultation procedures to facilitate implementation of these and other policies established under the Article.

These Regulations amend the Planning (Hazardous Substances) Act 1990 (“the Act”), the Planning (Hazardous Substances) Regulations 1992, the Town and Country Planning (Development Plan) Regulations 1991 and the Town and Country Planning (General Development Procedure) Order 1995.

The Act provides that the presence of a hazardous substance on, over or under land at or above the controlled quantity requires hazardous substances consent. The controlled quantity must be calculated by aggregating the quantity of a substance on, over or under land and certain other land or structures (together “the control zone”). Regulation 2 amends section 4 of the Act by adding to the control zone any other land which forms part of a single establishment.

Regulation 3 amends the Planning (Hazardous Substances) Regulations 1992. The main change is that it provides a new Schedule 1 prescribing the substances which are hazardous substances and their controlled quantities. Regulation 3(4) and regulation 2(2) amend provisions relating to exemptions from hazardous substances consent. Regulation 3(5) adds to the requirements for hazardous substances authorities to consult before granting hazardous substances consent. Regulation 3(8) and Schedule 2 prescribe new application and claim forms for hazardous substances consent.

Regulation 4 makes provision for deemed consents for hazardous substances for which a hazardous substances consent was not required before these Regulations came into force.

Regulation 5 amends the Town and Country Planning (Development Plan) Regulations 1991 to add to the matters that local planning authorities shall have regard when formulating their policies in a unitary development or structure plan.

Regulation 6 amends the Town and Country Planning (General Development Procedure) Order 1995 to add to the categories of development in relation to which local planning authorities are required to consult before granting planning permission.

A Regulatory Impact Appraisal has been prepared in relation to these Regulations. It has been placed in the Library of each House of Parliament and copies may be obtained from PD5A Division, Department of the Environment, Transport and the Regions, Eland House, Bressenden Place, London SW1E 5DU (Telephone 0171–890–3902) or Planning Division, Welsh Office, Cathays Park, Cardiff CF1 3NQ (Telephone 01222–823479).