HSE consideration of requesting planning call-in
The factors HSE takes into account when considering whether to request call-in of a planning application around a major accident hazard site or pipeline.
This sets out HSE’s operating policy when a planning authority advises HSE that it is minded to go against HSE’s advice and grant planning permission for development within an HSE consultation zone around a major hazard installation or pipeline.
HSE will use the factors described below to decide whether HSE should request that an application is called-in by the Secretary of State (England) or Welsh ministers for their determination. In Scotland when Scottish ministers seek HSE’s views on call-in, HSE can suggest an application be called-in for Scottish ministers to determine.
England’s national planning policy framework (2019, paragraph 45) states that local planning authorities should consult the appropriate bodies when considering applications for the siting of, or changes to, major hazard sites, installations or pipelines, or for development around them. National planning policies in Scotland (2014, paragraphs 107 and 99) and Wales (2018, paragraph 5.4.13.) also refer to consideration of the siting of such sites and development around them.
This takes account of Article 13 of EU directive 2012/18/EU (“Seveso III”), on the control of major-accident hazards involving dangerous substances, which is referred to in the Planning for Hazardous Substances regulations, as amended, in England, Scotland and Wales. Article 13 is about land-use planning and requires planning authorities to take account of the need, in the long term, to maintain appropriate safety distances between establishments covered by the Directive and new developments such as:
- residential areas
- buildings and areas of public use
- recreational areas
- as far as possible, major transport routes.
These policy aspects of the directive have been retained following EU exit.
To support the growth agenda (for example in England, National Planning Policy Framework paragraph 8) the web app is also available free to developers to check whether a site is in an HSE consultation zone. For sites inside HSE’s zones, pre-application advice is available for a fee.
In a year, HSE advises against the granting of planning permission in less than 300 instances out of about 3000 consultations from planning authorities made via the web app.
HSE’s safety advice is one factor for planning authorities to consider and its expertise in assessing the risks is acknowledged in Planning Practice Guidance in England and Planning Circulars in Scotland and Wales.
Planning authorities’ consideration of the risk
This is specifically explained in Planning Practice Guidance (England) and Planning Circulars (Scotland and Wales) (the “planning documents”)
National Assembly for Wales Circular 20/01 Planning controls for dangerous substances
For example, paragraph 069 in MHCLG’s Planning Practice Guidance contains advice on cumulative development around major accident hazards.
The decision on whether to grant permission rests with the planning authority. However, any advice from HSE that planning permission should be refused for development for, at or near to a major hazard site, installation or pipeline should not be overridden without the most careful consideration. See paragraphs 71, F36 and A5 in the planning documents mentioned above, respectively.
If necessary, HSE will clarify its advice against development 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. HSE will also consider attending planning committee meetings in order to explain its advice to committee members.
Where, after taking all relevant considerations into account a planning authority is minded to grant planning permission against HSE’s advice, it is important that the planning authority informs HSE.
This is covered in paragraphs 72, F37 and A5 of the planning documents, respectively.
In England and Wales, a planning authority should give HSE 21 days to further consider the matter.
In Scotland if minded to grant planning permission against HSE advice a planning authority is required to notify Scottish ministers who will seek the views of HSE on whether or not the application should be called-in.
When HSE is satisfied that the planning authority has given HSE’s advice most careful consideration and is acting in full understanding of the advice received and the consequences that could follow, HSE will normally consider its role discharged. See paragraphs 72, F40 and A6 in the planning documents, respectively.
If a developer and a planning authority have not engaged with HSE prior to a planning decision to grant against HSE advice, HSE will use the evidence available to it, for example: planning officer reports, applicant planning statements, recordings of committee meetings, and such like, to:
- come to a view whether the decision has been made in the full understanding of the consequences that could follow;
- in cases of exceptional concern to HSE, consider if there may be options to resolve or reduce the public safety risk. Addressing issues might take much longer than 21 days therefore timescales might need to be adjusted to accommodate collaborative work on the issues identified. This would need to be agreed between HSE and other parties. (An example of this is the case of a school proposed to be sited in a middle zone which was resolved when a different planning application was submitted for a smaller school further away.)
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. In Scotland, HSE recommending that Scottish ministers call-in will be exceptional. The purpose of call-in is to allow independent scrutiny of the planning issues.
Each ‘minded to grant against HSE advice’ case is considered by HSE on its own merits. Every case is considered as a potential ‘request call-in’ case until decided otherwise.
HSE’s decision making process is based on considering a variety of factors together. It would be rare for an individual factor, on its own, to lead to a case of exceptional concern to HSE.
All the factors do not have to be at a level of very high concern to lead to a case of exceptional concern. A combination of factors which individually have different levels of concern can lead to a case of exceptional concern. It is the analysis of the combination of all these factors that gives HSE a justifiable basis for its decision.
Tools are available to help consider some factors. It is understanding the combination of all relevant factors that is crucial.
Factors taken into account by HSE are:
1) The type of proposed development
1a) The number of people that will be exposed to the risk – the higher the number of people, the higher the concern to HSE.
Ranges of numbers of people, or appropriate surrogate measures, that are applicable to advising against a development are available in HSE’s published land use planning advice methodology. Cases of exceptional concern are expected to have higher numbers of people than the numbers used to trigger HSE advising against.
Absolute numerical values corresponding to specific levels of concern are not available. The numbers of people leading to various levels of concern are dependent on other factors such as the type of population and location in relation to the hazard or risk.
1b) The vulnerability of the population that will be exposed to the risk – the more vulnerable the population type, the higher the concern to HSE.
In HSE’s published land use planning advice methodology, vulnerable populations include people who require an element of care, protection or education.
- school children;
- residents of a care home; and
- hospital patients.
General public populations are considered less vulnerable than ‘vulnerable’ populations.
Working populations are considered less vulnerable than general public populations.
A vulnerable population on its own does not automatically lead to a case of exceptional concern because other factors are relevant.
A general public population or working population can lead to a case of exceptional concern depending on other factors.
1c) The circumstances of the population in terms of exposure to the hazard - certain circumstances are of more concern to HSE than others.
- being outdoors when the hazard is thermal or toxic is of more concern than being indoors;
- being indoors for explosive hazards is of more concern than being outdoors;
- multi-storey development is of more concern than one- or two-storey development due to restrictions on the ability to escape.
The combination of the circumstance and other factors can lead to a case being of exceptional concern.
1d) Length of time each day/night the population will be present – the longer a population will be in the location, the higher the concern to HSE.
The combination of this factor with other factors can lead to a case being of exceptional concern.
2) The location of the development in relation to the hazard or risk (type of harm and level of risk).
The closer the development is to the hazard or risk, the higher the concern to HSE.
The combination of this factor with other factors can lead to a case being of exceptional concern. For example, significant housing in the Inner Zone will often be of exceptional concern to HSE.
3) The local authority’s consideration of the risk.
The more careful the consideration and the fuller the understanding of HSE’s advice and the consequences that could follow, the lower the concern to HSE as our advisory role will have been discharged. However, even if HSE’s advice is understood yet set aside, a case may still be of exceptional concern due to other factors. For example, where the risks are substantial.
Failure by the planning authority to understand HSE’s advice is of concern. Failure to consider HSE’s advice is of greater concern. Depending on other factors a case could be of exceptional concern.
4) Other relevant factors.
Some examples (non-exhaustive) are:
- HSE making a judgement on whether there is a risk to public safety if the hazardous substances consent impacting on the proposed development is not in use and its future use is not reasonably foreseeable. For example, if there has been a change of use at the consented site from industrial to housing.
- Previous ‘minded-to-grant’ cases in the vicinity which indicate a lack of understanding of HSE’s advice and the consequences that could follow – the more development that is permitted against HSE advice, the higher the concern to HSE depending on the type of development and location;
- Cumulative development which indicates a lack of understanding of HSE’s advice and the consequences that could follow – the more cumulative development, the higher the concern to HSE depending on the type of development and location;
- Other relevant factors specific to the case and the decision to request call-in.
In all cases, HSE will take a considered view whether to request call-in.
Cases range from relatively straight forward to extremely complex. The more complex a case, the more detailed consideration is required.
The decision by HSE to request call-in is made at Divisional Director level.
This policy also applies to HSE’s advice on planning applications for hazardous substances consent, although such cases are less frequent.
Any decision by HSE to not request call-in does not remove HSE’s strong advice against the granting of planning permission.
Examples of some historical cases where HSE has requested or considered requesting that a planning application be called-in.