Detoxifying the planning process

Revoking hazardous substances consents

Background

The hazardous substances regime ensures that necessary measures are taken to prevent major accidents and limit their consequences to people and the environment. The regime originates from a number of major incidents in Europe in the 1970s, the most significant of which took place in Seveso, Italy, in 1976, where the accidental production and release of a dioxin as an unwanted by-product from a runaway chemical reaction led to widespread contamination. Such incidents, and an acknowledgement of the need to reconcile different standards of control over industrial activities within the EU, led the European Commission to propose a Directive on the control of major industrial accident hazards. The original Seveso Directive was adopted in 1982; it has been amended over time and the current iteration, Seveso III, was adopted in 2012.

The objectives of the Directive are achieved through two main areas: (1) land use planning requirements and (2) health and safety measures. In England, the former is implemented through the Planning (Hazardous Substances) Act 1990 and the Planning (Hazardous Substances) Regulations 2015 and the latter is delivered principally through the Control of Major Hazards Regulations 2015 ("COMAH"). This article focuses only on the land use planning aspects in England.

The process established by the Planning (Hazardous Substances) Act 1990 (the "Act") regulates the storage and use of hazardous substances by making a HSC a prerequisite to storing hazardous substances on sites in controlled quantities. HSCs therefore provide control over the presence of hazardous substances whether or not an associated planning permission is required for the development of a hazardous installation. The authority responsible for granting HSCs, the Hazardous Substances Authority, is usually the relevant local council and often this is the same entity as the Local Planning Authority. Where this is the case, it needs to be remembered that the authority's planning and hazardous substances functions are related but separate.

Why is this relevant?

When a HSC application is considered, an assessment is made as to risks and likely effects of major accidents occurring at the installation. The decision as to whether the level of risk is tolerable for the surrounding community and environment is made by the Hazardous Substances Authority. However, the HSE,¹ as the COMAH competent authority and statutory consultee on HSC applications, will advise the Hazardous Substances Authority as to the nature and severity of risk. The HSE sets a consultation distance ("CD") around major hazard sites following the risk assessment, being the area which the HSE considers at risk from either the activities being carried out or from the substances present on the site. A CD is divided into three zones (inner, middle and outer) which define the levels of likely risk or harm to individuals (including businesses) within each zone with risks and consequences decreasing from inner to outer zones.

When a HSC is granted, the CD associated with it is also fixed. This then interfaces with the land-use planning regime both at plan-making and decision-taking levels. Local Planning Authorities should know the location of hazardous installations as they will have been notified of any relevant CDs by the COMAH competent authority. When taking public safety into account in planning decisions and formulating local plans, the Local Planning Authority will need to take account of the total number of people that will be present in the CDs as a result of development coming forward.

So, for example, if a planning application is submitted which falls within a CD (for the redevelopment of the major hazard site itself or within its vicinity) the Local Planning Authority must consult with the HSE and take its advice into account when determining the application. The HSE will present its advice in one of two ways; it will either "advise against" or "not advise against" the grant of planning permission, taking into account the nature, size and characteristics of the proposed development and its location within the CD and proximity to the hazardous installation. Although the HSE's role is advisory only, it is unusual for Local Planning Authorities to go against HSE advice; where they do, the HSE has the power to request that the Secretary of State ("SoS") calls in the planning application. The HSE will also advise the Local Planning Authority on conditions which may be imposed on any planning permission.

Why is it an issue?

Although the restrictions on developing around hazardous installations are understandable and necessary, the potential for conflict between the existence of an HSC and a local authority's planning priorities is clear. The housing crisis currently facing the UK exacerbates this problem. In the drive to increase land supply for new homes, the spotlight is increasingly falling on brownfield and former industrial land in our cities; even sites that once housed hazardous installations now provide opportunities for residential, employment and community uses to be developed. Indeed, the Government's Housing White Paper (February 2017) and subsequent NPPF (July 2018), alongside the Mayor of London's Housing Strategy (May 2018) and emerging draft London Plan, all seek to encourage the productive re-use of brownfield land; so much so that the NPPF now requires planning policies and decisions to "give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs".²

While the policy paper trail is clear to see, it won't by itself override the paper trail left over from a site's industrial past. The problem is particularly acute where a HSC legally subsists but is redundant in practice (disused urban gas holder sites where natural gas is no longer stored in controlled quantities are a good example). This is because until an HSC is formally revoked, the CDs remain in place and are likely to still apply. This can lead to an out of date "paper trail" that acts as a barrier to development, a political lever and commercial bargaining chip even when the absence of hazardous substances and benefits of redevelopment are plain to see. The following problems can arise:

1. An unrevoked HSC may contribute to a site not being released from an industrial planning policy designation and/or not allocated for housing and other development. This can result in substantial cost and delay for developers who may have to wait for a local plan review to lobby for a change in policy or, alternatively, prepare and consult on a planning brief, masterplan or similar to win support from the Local Planning Authority. It can also results in planning applications for redevelopment being advertised as departures from the local plan which increases call-in risk and is another hook for objectors. This issue could also become increasingly tactical given the direction that planning policy is taking. Policy H5 of Sadiq Khan's draft London Plan makes plain that the Mayor expects residential proposals on industrial land to deliver at least 50 per cent affordable housing where the scheme would result in a net loss of industrial capacity. A situation where a local authority supports redevelopment in principal but tactically seeks to retain an industrial allocation in order to secure greater upfront affordable housing and/or more stringent reviews of financial viability is not unforeseeable.
2. The HSE "advises against" the grant of planning permission even where the Local Planning Authority is supportive. This is a fairly regular occurrence on the basis that unless the relevant HSC is revoked, hazardous substances could in theory be reintroduced to the site. The solution is usually the imposition of a planning condition restricting occupation of the whole or part of the development unless and until the HSC concerned is formally revoked. This can be a pragmatic approach to securing the grant of planning permission, especially in circumstances where the developer has a contractual relationship with the HSC holder. However, it can store up problems where the HSC holder is a third party or adjoining landowner. In either case, it still requires the revocation of the HSC for the development to be de-risked and resource and effort on the developer's part to achieve this.
3. The more extreme outcome is a request by the HSE for the SoS to call-in a planning application following the Local Planning Authority's resolution to grant planning permission. Although not a frequent occurrence, the situation is not unheard of. This precise situation arose at the former Ram Brewery in Wandsworth Town Centre in 2010, where the density of part of the proposed development (two residential towers) within the inner and middle zones of the CD of a neighbouring gasholder resulted in the calling-in and subsequent refusal of the application by the SoS notwithstanding a resolution to grant planning permission being made by the local planning authority. One of the reasons for refusal was the possibility of a major explosion at the gasholder; although the risk of a major explosion was considered low it was not insignificant. A revised scheme with recalibrated bulk and massing was subsequently granted planning permission at a local level but was subject to a condition preventing occupation of various blocks until the relevant HSC had been fully revoked. The condition was imposed notwithstanding written assurances from the HSC holder that it intended to decommission the gasholder and relinquish the HSC in the near future.
4. As the Ram Brewery example demonstrates, out of date HSC's can restrict development both on site and more widely. This can lead to a concentration of power in hands of HSC holder who can frustrate the ambitions of neighbouring landowners and developers as well as Local Planning Authorities.
5. Often the HSC is simply forgotten or assumed to be irrelevant. This can result in sites not being properly assessed in Environmental Impact Assessments, the HSE not being properly engaged at the pre-application stage and restrictive conditions subsequently coming as a surprise and development programmes overlooking the time and steps required to revoke an HSC. In a worst case, it can also result in missed contractual opportunities.

What can be done?

The Government's guidance acknowledges the risk that redundant HSCs pose to development:

"Hazardous substances authorities should be proactive about revoking consents that are no longer required. Operators are required to inform the COMAH competent authority in advance of permanently closing or decommissioning a COMAH site. The competent authority will then notify the hazardous substances authority to allow for the revocation of the hazardous substances consent."

However, in reality, there is little evidence of this proactivity, even where a site is de-notified under COMAH. Although revocation powers sit with the Hazardous Substances Authority it will often not invoke them without first receiving a request to do so from the HSC holder.
This can be addressed where a developer is proposing to develop the hazardous installation itself by dealing with it contractually to oblige the holder of the HSC to revoke it.
The issue is less straightforward where the HSC benefits third party land. Where a deal cannot be struck with the HSC holder it may be necessary to see if the Hazardous Substances Authority can apply leverage. Where this is not possible a design scheme design may need to be explored which minimises the impact of any potential occupation restrictions that could be imposed.

How do you revoke a HSC?

In simple terms the Hazardous Substances Authority makes a revocation order and the Secretary of State confirms it, following procedures similar to those used to stop up highways.

The powers for Hazardous Substances Authorities to "make" revocation orders are contained in sections 14(1) and 14(2) of the Act:

1. section 14(1) contains a general power and permits a revocation order to be made if the Hazardous Substances Authority considers it expedient to do so having regard to material considerations; and
2. section 14(2), enables a Hazardous Substances Authority to make a revocation order if it appears to them that a prescribed scenario has arisen, namely:
   
   

• there has been a material change of use of land to which the HSC relates;
• planning permission has been granted for development which would involve a material change of use of the land affected by the HSC and the development to which the permission or development consent related has been commenced; or
• the hazardous substance (or substances) consented has not been present on, over or under the land to which the HSC relates for at least five years.

Section 14(4) requires that a revocation order must specify the grounds on which it is made.

Section 15 of the Act then provides that a revocation order shall not take effect unless it is confirmed by the Secretary of State. The confirmation process is handled by National Planning Casework Unit ("NPCU") in Birmingham on behalf of the Secretary of State.

The Act provides very little detail as to the procedural requirements for making and confirming a revocation order. In truth, the process is not complicated and the key steps can be summarised as follows:

1. The Hazardous Substances Authority "makes" the revocation order, which means that they seal and date the relevant document.
2. The authority sends the made order to the SoS for confirmation and simultaneously serves notice on landowners (and people in control of the land) and affected parties (this is a very limited list and does not comprise the general public and neighbours or other consultees). The notice should advise recipients to direct objections to the NPCU. The NCPU recommends avoiding any wider consultation as it is not strictly required and can cause confusion and delay as an authority will need to respond to any representations it receives.
3. The people on whom notice is served then have 28 days to serve objections on the SoS at the NPCU.
4. If there are objections, a local inquiry would need to be held but in practice, there would probably be some time to try and negotiate away the objections.
5. After expiry of the 28 day period, if no objections are made, the SoS can confirm the order with or without modifications.
6. Confirmation of the order involves a physical endorsement by the SoS on the order (i.e. a stamp is applied verifying that the order has been confirmed and the date plus any modifications required).
7. The order and any modifications take effect on the date of confirmation.
8. The authority then serves a second notice enclosing a copy of the confirmed order on the same parties originally served.

What do you need to be aware of in the revocation process?

Revocation orders made under section 14(1) attract a right to compensation by anyone suffering damage in consequence of the order by way of (a) depreciation in value of a land interest or (b) disturbance of his enjoyment of land. Authorities can therefore require assurances that no claims for compensation will be made or that they are suitably indemnified against such claims before using their powers. No such rights arise in relation to the use of section 14(2) powers, however, the authority may require evidence which demonstrates that a prescribed scenario has arisen and this can be hard to collate without input from the HSC holder.

Although making and confirming a revocation order is not a complex process, the reality is that many authorities are more used to wearing their Local Planning Authority hats than their Hazardous Substances Authority ones. So while the process of getting a revocation order confirmed by the Secretary of State is relatively straightforward there is typically some uncertainty as to the steps the Hazardous Substances Authority will take at the beginning of the process to actually make the order. Different authorities take different routes to make the revocation order depending on their internal processes. Given the general unfamiliarity of authorities with their powers/functions under the Act, this can lead to delay and confusion. Errors by a Hazardous Substances Authority at the front-end can cause unnecessary delays at the confirmation stage with the Secretary of State. Much also depends on the HSC holder who may need to provide written assurances to the authority to help the process along.

Having assisted on a number of revocation orders, our suggested practical points for anyone involved in obtaining a revocation order are:

1. seek to agree an action plan with the Hazardous Substances Authority early on to clearly establish what powers it will be using, what steps it will be taking to make the order and what information it requires from the HSC Holder;
2. encourage the HSC Holder to provide sufficient information that enables the authority to use s14(2) powers if possible. Where s14(1) powers are to be used the HSC Holder will need to confirm that it does not intend to pursue a compensation claim;
3. there is no need for public consultation (the Act only requires notice to be served on a very limited group, namely landowners and those affected by the revocation);
4. it may be prudent to avoid determination by committee and to stick within a Hazardous Substances Authority's delegated powers;
5. engage early with NPCU to establish what they require to be submitted to them and relay this information to the Hazardous Substances Authority;
6. establish a good working relationship with legal officers at the Hazardous Substances Authority if they will be assisting with the order making process and be on hand to assist them as necessary.
   
   

Conclusion

The pressure to increase housing land supply in our cities means that we are increasingly going to see HSCs needing to be revoked in order for development to be de-risked and brought into beneficial use.

Policy may keep moving forwards but it will be necessary to address redundant HSCs if the housing and economic growth our politicians want to see is to be achieved. Hazardous Substances Authorities will need to become more confident in their powers and more proactive in revoking old consents.

Meanwhile, the more familiar developers are with the revocation process the better able they will be include appropriate conditionality into land contracts, navigate the planning process and to assist Hazardous Substances Authorities in driving forwards revocation orders when needed.

1. The COMAH competent authority for most cases is the Health and Safety Executive and Environment Agency, acting jointly and for nuclear sites the Office of Nuclear Regulation and the Environment Agency, acting jointly.
2. NPPF 2018 paragraph 118(c)