Criteria document for Land Use Planning cases of serious public safety concern
- Version No:
- OG Status:
- Fully Open
- Author Section:
HID CEMHD5 and HID Policy – Land Use Planning
- Issue Date:
- 15 July 2015
- Review Date:
- 15 July 2017
- Target audience:
- All staff in HID CEMHD, ED and LAO.
1. This document sets out HSE’s policy when a Hazardous Substances Authority (HSA) or Planning Authority (PA) has advised HSE that it is minded to go against its advice and grant either hazardous substances consent (HSC) or planning permission for development within HSE’s consultation distance (CD) of a major hazard installation/pipeline. HSE’s policy for land use planning (LUP) applies to applications for HSC. HSE will use the criteria in paragraph 8 to decide whether it should:
- in England, request that an application is called-in by the Secretary of State (SoS) for his/her own determination;
- in Wales request that an application is called-in by the Welsh Ministers for their own determination; or
- in Scotland1, inform Scottish Ministers that HSE maintains its objection to a development proposal and invites Scottish Ministers to call it in for their own consideration.
2. HSAs and PAs have a statutory duty to consult HSE on:
- applications for HSC under regulation 10 of the Planning (Hazardous Substances) Regulations 2015 in England, regulation 10 of the Planning (Hazardous Substances) Regulations 19924 in Wales and regulation 14 of the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015 in Scotland; and
- planning applications concerning proposals for developments near to major hazard sites, which are subject to the Control of Major Accident Hazard (COMAH) Regulations 2015 and the Pipelines Safety Regulations 1996.
HSE is a statutory consultee under:
- article 18 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 in England;
- article 14 of the Town and Country Planning (Development Management Procedure) Order 2012 in Wales; and
- regulation 25 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 in Scotland.
3. The responsibility for making the decision on whether or not to grant HSC or planning permission rests with the HSA/PA. The decision is made after taking into account all relevant considerations, including HSE’s public safety advice.
4. To ensure that local officials and councillors are able to make an informed decision about the risks to the public, prior to the decision making process, HSAs/PAs are welcome to contact HSE, which will clarify its advice in cases where it has advised against HSC or development. HSE would also be content to advise developers of major mixed-use schemes. HSE will also consider attending planning committee meetings in order to explain its advice to committee members.
5. It is important that HSAs/PAs inform HSE when they are minded to go against its advice. If HSE has exceptional safety concerns about the risks associated with the proposed storage of hazardous substances or a development within the vicinity of a major hazard installation/pipeline, it will follow its internal process for considering
- in England and Wales, whether it should write to the SoS or Welsh Ministers respectively to ask that they call-in the application for their own determination; or
- in Scotland, whether it should invite Scottish Ministers to call in the application for their own consideration.
6. It is an exceptional course of action for HSE to request that an application be called-in and it will only consider doing so in cases of exceptional concern or where important safety or policy issues are at stake. HSE will normally consider its role to be discharged when it is satisfied that the HSA/PA has given HSE’s advice the most careful consideration and it is acting in full understanding of that advice and the consequences that could follow.
Relevant factors in deciding whether to request call-in
7. Following notification from a HSA/PA that it is minded to grant HSC/planning permission against HSE’s advice, the criteria in paragraph 8 will be used to decide whether HSE should request call-in of an application. However, for planning applications only, HSE will firstly consider the following:
- evidence which indicates that the relevant consent entitlement is not being fully utilised and is very unlikely to be fully utilised in the future;
- an indication that the relevant consent has not been used for five years or more; or
- knowledge/evidence that although the HSC remains in place, the major hazard installation/pipeline no longer exists.
Even if one or more of the above are satisfied, unless it is clear that there are enforceable means in place to ensure that the hazardous substance cannot be brought back on to the site, and the HSC remains in place, HSE will still advise against an application for planning permission. However, in such cases, HSE will encourage HSAs/PAs to amend or revoke the HSC before they make a decision to grant planning permission. It may also be possible that the relevant HSA/PA could provide HSE with assurances to allay its safety concerns by the use of a condition, for example preventing the construction/occupation of the building until the HSC has been revoked. In most cases it would then be unlikely that HSE would request call-in.
8. When an HSA/PA has informed HSE that it is minded to go against its advice, HSE will consider whether to request the application be called in by the SoS or, as the case may be, by Welsh Ministers or Scottish Ministers. HSE will consider all relevant factors, but will treat the presence of any of the following criteria as a significant factor in favour of requesting call-in.
- Any significant residential development or development for vulnerable populations in the inner zone:
- Close to the major accident hazard such that the consequences to people from a major accident are very severe;
- ‘Significant residential development’ means three or more residential units, thereby placing 8-10 people at high risk;
- A vulnerable population would include the young (e.g. schoolchildren), the elderly (e.g. residents of a nursing home), or the infirm (e.g. hospital patients). These population groups would be more susceptible to harm from hazardous substances and more at risk as they would be difficult to evacuate in an emergency.
- The risk of death from a major hazard exceeds the Tolerability of Risk (TOR) tolerability limit for a member of the public.
- If this limit is ever reached or given the uncertainty in calculating risk values the risks are so high that the actual risk from the site could have crossed the TOR limit.
- There are substantial numbers of people in the proposed development exposed to a significant level of risk
- HSE has developed a method of assessing the degree of societal risk associated with a proposed development known as the Scaled Risk Integral (SRI). In appropriate cases HSE will apply SRI.
- Where the level of 2societal risk is substantial HSE will initiate its internal call-in procedure in order to give further consideration to the application;
- HSE will give the most serious consideration to the application where the level of societal risk is approaching intolerable such that development in the location would create serious public safety concerns. This would be cases where the SRI is between 500,000 and 750,000 which means that HSE will consider recommending call-in for cases of exceptional concern;
- Where the level of societal risk is so high that it is intolerable HSE will request call-in, this would be cases where the SRI exceeds 750,000.
- The endangered population is particularly sensitive.
- For example, the young, the elderly or those under residential medical care.
- It is a challenge to HSE’s risk criteria for land use planning.
- For example, where an HSA/PA repeatedly sets aside HSE’s advice, which would result in a cumulative increase in the population around a major hazard installation/pipeline.
Large scale petrol storage sites
9. HSE’s Planning Advice Web App3 cannot be used to determine HSE’s advice on developments within the Development Proximity Zone (DPZ) of large-scale petrol storage sites, (see SPC /TECH/GEN/43 – Land Use Planning Advice around Large Scale Petrol Storage Sites). HSAs /PAs must therefore refer any planning applications within the DPZ to HSE. If a HSA/PA is minded to grant planning permission for a development in the DPZ against HSE’s advice, HSE will consider the application on a ‘case-by-case’ basis.
10. Guidance which explains planning controls for storage of hazardous substances is available. This replaces Circular 04/2000 – Planning Controls for Hazardous Substances which was withdrawn on 7 March 2014
11. Circular 5/93 ‘Planning Controls for hazardous substances - The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993’ provides guidance on the operation of the consent procedure in Scotland. This is currently being revised to incorporate changes arising from ‘The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015.
12. Circular 20/01 ‘Planning Controls for Hazardous Substances’ provides guidance on the operation of the consent procedure for hazardous substances in Wales.
- In Scotland, the Planning Authority has to notify Scottish Ministers when they want to grant planning permission against HSE’s advice and cannot issue such permission until Ministers have cleared the application (assuming they do not call it in). The HSC process is the same as England and Wales.
- This is the “case societal risk” of the development. That is the frequency of a large number of people being seriously harmed at the proposed development by a major accident which is different from local societal risk created by the major hazard installation to existing surrounding populations.
- HSE’s Planning Advice Web App is an online software package , which PAs can access electronically to obtain HSE’s advice. However, applications for hazardous substances consent or for development within the DPZ of a large-scale petrol storage site cannot be routed through HSE’s Planning Advice Web App.
- This will be replaced by provisions in the Planning (Hazardous Substances) (Wales) Regulations 2015 which are due to come into force later in 2015.