Sandwell Local Plan - Reg 19 Publication

14. Development Constraints and Industrial Legacy

14.1 Within Sandwell there are a range of areas that contain constraints that could affect development.

Hazardous Installations and Substances

14.2 Major accidents at sites storing hazardous substances are rare, but when they do occur the effects on people living nearby can be devastating. The planning system seeks to manage the prevention and limitation of major accidents from hazardous installations and substances through three processes.

Hazardous substances consent

14.3 The storage or use of hazardous substances at or above defined limits requires hazardous substances consent. Applications for hazardous substances consent should be made to the relevant hazardous substances authority. This is Sandwell Council, as the local planning authority.

The plan-making process

14.4 Sandwell Council is required to have regard to the prevention of major accidents and limiting their consequences when preparing the Local Plan. The Council must also consider the long-term need for appropriate distances between hazardous establishments and population or environmentally sensitive areas. The Council must also consider whether additional measures for existing establishments are required so that risks to people in the area are not increased.

The determination of planning applications

14.5 When considering development proposals around hazardous installations, Sandwell Council will seek technical advice from the Health and Safety Executive and Environment Agency on the risks presented by major accident hazards affecting people in the surrounding area and the wider environment. Those risks will be given appropriate weight and will be balanced against other relevant planning considerations when applications for planning permission are determined.

Justification

14.6 The Planning (Hazardous Substances) Act 1990 requires consent to be granted for the storage and use of certain toxic, explosive, inflammable, highly reactive and hazardous substances. The Planning (Hazardous Substances) Regulations 2015 sets out which hazardous substances require consent and identifies their controlled quantities (the maximum amount of any one substance that can be stored at a site). Nevertheless, the application of these regulations cannot guarantee that there will be no residual risk to people in the vicinity, meaning that the risk remains unavoidable despite all legally required measures being taken to prevent and mitigate the impacts of a major accident.

14.7 To address this, the Council will exercise a degree of control over the presence of hazardous substances through the development control system, where these substances are directly associated with a proposed development. However, there are situations where hazardous substances may be introduced onto a site, or used in a different way within it, without there being any associated development requiring planning permission. The provisions address this gap in planning regulations by enabling specific control to be exercised over the presence of hazardous substances whether associated development is involved or not. The Council must decide if, in the light of the residual risk and having regard to the existing and prospective uses of a site and its surroundings, the proposed presence of a hazardous substance is an appropriate land use for that site.

14.8 Where planning permission is required in addition because the proposed storage or use of a hazardous substance is associated with a development proposal, two separate applications and approvals will be necessary. The Council will wish to ensure that related applications for hazardous substances consent and for planning permission are dealt with together.

14.9 The Health and Safety Executive (HSE) must be consulted on every application for hazardous substances consent and will assess the risks arising to persons in the vicinity from the presence of a hazardous substance. However, the decision on whether those risks are tolerable in the context of existing and potential uses of neighbouring land is made by the local planning authority. Hence, the Act confers responsibility for determining applications for hazardous substances consent, for vetting claims for deemed consent and for enforcing the controls onto the local planning authority. The HSE is responsible for notifying local planning authorities of the relevant consultation zones around sites where certain hazardous substances are present. Applicants can use the Health and Safety Executive Planning Advice web app^[236] to determine whether a proposal is within a consultation zone.

14.10 The types of development within a relevant zone on which HSE should be consulted include:

1. all residential development;
2. retail, office and industrial development above a specified floor area; and
3. any development likely to result in a material increase in the number of persons working within or visiting the notified area.

14.11 Sandwell Council is concerned with stabilising and reducing the number of residents who may be vulnerable to hazardous substances. Consequently, it will oppose applications that would increase the number of people exposed to them, or that would put vulnerable groups at risk, and will seek the reduction or removal of the hazardous component of notified installations.

14.12 As with planning permission, hazardous substance consent provides an entitlement that runs with the land; as a general principle, it is considered that compensation should normally be payable when loss or damage results from a revocation or modification of such permission. However, it may be undesirable for a hazardous substances consent to continue to have an effect when it has fallen into disuse, as it could restrict unnecessarily the uses to which neighbouring land can be put or continue to impose onerous requirements on those who benefit from the consent. Consequently, the Council will use its powers under Section 14^[237] to revoke consent, when appropriate, and when compensation is not payable.

Pollution Control

14.13 Sandwell Council aims to protect current and future residents of the borough and the environment from the effects of pollution, both from existing sources and from any impacts originating from new development. Controlling pollution appropriately can contribute to the achievement of sustainable development by fulfilling both the environmental objective of minimising pollution and the social objective of supporting healthy communities.

Justification

14.14 The NPPF requires planning policies to prevent new and existing development from contributing to, being put at unacceptable risk from, or being adversely affected by, unacceptable levels of air, water or noise pollution^[240].

14.15 The whole of Sandwell Borough was declared an Air Quality Management Area (AQMA) in July 2005 due to likely exceedances of the Air Quality Objective for Nitrogen Dioxide of 40 micrograms per cubic metre (ug/m³)^[241]. The borough has historically had poor air quality due to industrial emissions; however, air quality has improved due to cleaner technology and the closure of many traditional heavy industry-related premises. The main concern now is traffic-related pollution, caused by high volumes of traffic and the presence of the busy M5 and M6 motorway networks^[242].

14.16 National planning guidance states that odour can be a planning concern because of its effect on local amenity^[243]. The Institute of Air Quality Management's guidance on the assessment of odour for planning (revised in 2018) explains that there must be odour exposure before an adverse effect can occur^[244]. Odour exposure requires the presence of all three links in the source-pathway-receptor chain^[245]. Removing a link within the chain can prevent odour exposure.

14.17 National planning guidance also explains that light pollution can be a source of annoyance to people, can be harmful to wildlife and can undermine enjoyment of the countryside or the night sky^[246]. It states that the planning system can ensure that external lighting arrangements are deemed appropriate from the outset. Applications for planning permission that introduce new external lighting sources may need to supply sufficient information for the local planning authority to assess the impact of the lighting proposals. The Council may require the incorporation of lighting shields and baffles into the design of new external lighting proposals to mitigate against any negative impacts.

14.18 Potential receptors of light pollution impact include residential properties, areas of ecological value and the canal network. Light pollution in the environment can include (but not be limited to):

1. light trespass / encroachment on domestic properties from adjacent activities or buildings;
2. glare caused by poorly designed and installed lighting, which can adversely affect pedestrians, cyclists and drivers;
3. sky glow, where poorly located and directed light shines upwards and prevents views of the dark night sky.

14.19 Among the impacts of these forms of pollution are reductions in privacy, poor quality sleep, hazards to road and site users and adverse impacts on the natural environment and wildlife. While it might be difficult to eliminate entirely some of these impacts, especially in an urban area such as Sandwell, it is possible to design lighting schemes to mitigate and minimise them, especially in areas where lower light levels contribute to social and environmental benefits.

14.20 Sandwell Council will seek to safeguard the health and quality of life of its residents by refusing applications for planning permission that would give rise to unacceptable levels of noise and vibration, both during construction and following the completion of development. There is increasing evidence of the harmful effects of noise on human health, for example on the cardiovascular system and mental health^[247]. The Council's validation checklist for planning applications sets out the situations in which an application for planning permission should be accompanied by a noise impact assessment. Such assessments should be carried out and reported in accordance with current authoritative guidance, British Standard and best practice by a competent person. Appropriate mitigation and / or remedial measures should be identified and secured through planning conditions and / or obligations.

14.21 The Council will apply the 'agent of change' principle set out in the National Planning Policy Framework to ensure that new development does not place unreasonable restrictions on the functioning of existing businesses and community facilities.

Land contamination and instability

14.22 Much of the land within Sandwell has been impacted by historic heavy industry, contaminating uses and the extensive mining of mineral resources using small open pits and underground pits. This has left a legacy of poor quality and unstable land, with ground conditions varying greatly across relatively short distances within the borough.

14.23 The presence of contamination or ground instability can affect the use of land; however, development can help address these issues and bring the land back into beneficial use.

Justification

14.24 The NPPF requires planning policies to prevent new and existing development from contributing to, being put at unacceptable risk from, or being adversely affected by, land instability^[248]. Planning policies should also enhance the environment by supporting the remediation and mitigation of despoiled, degraded, derelict, contaminated and unstable land, where appropriate^[249].

14.25 Most applications for planning permission will be expected to provide a desk-based study of ground conditions as a minimum requirement. Applicants should refer to the Council's validation checklist and seek advice from officers to determine the need for and scope of a desk-based study and / or intrusive site investigation. Regard should be had to the potential for migrating contaminants, and the possible presence of ground gas from historic landfill and mining sites. A land stability or slope stability risk assessment may be required where unstable ground is known or suspected^[250].

14.26 Sandwell Council will consult the Coal Authority on applications for planning permission within a Development High Risk Area^[251] unless the application is an exempt one. Applications for planning permission within a Development High Risk Area will need to be accompanied by a Coal Mining Risk Assessment, again unless the proposed development is exempted.

14.27 The Council will impose conditions and / or obligations on the grant of planning consent to ensure satisfactory information is provided in relation to ground conditions, and that agreed remedial action is completed prior to the occupation of development.