Draft Regulation 18 Sandwell Local Plan

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 as local planning authority is required to have regard to the prevention of major accidents and limiting their consequences when preparing Local Plans. 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 Sandwell Council as local planning authority is expected to 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 environment when considering development proposals around hazardous installations. Those risks will be given appropriate weight and will be balanced against other relevant planning considerations when determining applications for planning permission.

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 the hazardous substances and their controlled quantities that require consent. 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 products 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 fill the gap in planning control 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. But the decision on whether those risks are tolerable in the context of existing and potential uses of neighbouring land is one to be 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 on 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 to determine whether a proposal is within a consultation zone.

14.10 The types of development within the consultation zone on which HSE should be consulted include all residential development; retail, office and industrial development above a specified floor area; and 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 population at risk from hazardous substances. Consequently, it will oppose applications which will increase the population at risk, or put at risk vulnerable groups, 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. However, it may be undesirable for a hazardous substances consent to continue to have 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 to revoke consent, when appropriate, and when compensation is not payable.