Eriden Properties Llp V. For Judicial Review Of The Grant By Falkirk Council On 1 November 2006 Of A Hazardous Substance Consent
| Jurisdiction | Scotland |
| Judge | Lord Clarke |
| Neutral Citation | [2007] CSOH 157 |
| Court | Court of Session |
| Published date | 11 September 2007 |
| Year | 2007 |
| Date | 11 September 2007 |
| Docket Number | P259/07 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 157 | |
| P259/07 | OPINION OF LORD CLARKE in the petition of ERIDEN PROPERTIES LLP Petitioners; for Judicial Review of The Grant by Falkirk Council on 1st November 2006 of a Hazardous Substances Consent ________________ |
Petitioners: Dean of Faculty, Mure; Simpson & Marwick WS
First Respondents: Currie QC; Wright, Johnston & Mackenzie
Second Respondents: Thompson QC, Lake; Dundas & Wilson
11 September 2007
Introduction
[1] In this petition for judicial review the petitioners seek review of a grant, on 1 November 2006, by Falkirk Council (the first respondents) of a hazardous substances consent for premises occupied by KemFine UK Limited (the second respondents) at Grangemouth. The petitioners' interest in the matter is that they own land close to the site of the second respondents' premises and to which the hazardous substances consent relates. The petitioners aver that they wish to develop their land for housing and other uses. As averred by the petitioners in this petition, chemical works have been operated at the site of the second respondents' premises, and on land adjacent to them, since the early part of the 20th century.
[2] In article 5 of the petition, the petitioners aver
"The Site was at one time part of a chemical works operated by ICI and later transferred first to Zeneca (which later became Astra Zeneca) and then in part to Avecia Fine Chemicals Limited ("Avecia"). The Applicant (i.e. the second respondents) took over most of Avecia's premises in about 2005. The Applicant's (second respondent's) premises at the Site now include most of the process and storage plant previously owned by Avecia. A small part of Avecia's former premises, however, is now controlled by FujiFilm, which on 30 March 2006 made its own hazardous substances consent application . . .".
[3] The second respondents' premises, and the operations carried out there, are part of large scale operations in the Grangemouth area in the petrochemical sector, which is a source of considerable employment and economic activity, not only for this area itself but in the context of Scotland as a whole. The first respondents are the planning authority for the Grangemouth area. As planning authority they are charged with the responsibility of issuing consents in relation to the presence of hazardous substances on, over or under land in their area.
The statutory framework
[4] The primary legislation concerned is the Planning (Hazardous Substances) (Scotland) Act 1997. Section 2(1) provides as follows:
"Subject to the provisions of this Act, the presence of a hazardous substance on, over or under land requires the consent of the planning authority (in this Act referred to as 'hazardous substances consent')."
Section 5(1) of the 1997 Act goes onto provide as follows:
"Provision may be made by regulations with respect to -
(a) the form and manner in which applications under this Act for hazardous substances consent are to be made,
(b) the particulars which they are to contain and the evidence by which they are to be verified,
(c) the manner in which they are to be advertised, and
(d) the time within which they are to be dealt with."
Section 5(2) then provides as follows:
"Regulations may -
(a) require an applicant for hazardous substances consent or the planning authority or both to give publicity to an application for hazardous substance consent in such manner as may be prescribed;
(b) require the planning authority to conduct appropriate consultations before determining applications for hazardous substances consent;
(c) provide for the manner in which such a consultation is to be carried out and the time within which -
(i) such a consultation;
(ii) any stage in such a consultation
is to be completed
(d) require the planning authority to determine applications for hazardous substances consent within such time as may be prescribed;
(e) require the planning authority to give prescribed persons or bodies prescribed information about applications for hazardous substances consent including information as to the manner in which such applications have been dealt with".
Section 5(3) then provides:
"In subsection (2) 'appropriate consultations' means consultations with the Health and Safety Executive and with such persons or bodies as may be prescribed".
[5] The 1997 Act by section 7(1) provides "Subject to the following provisions of this Act, where an application is made to a planning authority for hazardous substances consent, that authority may -
"(a) grant hazardous substances consent, either unconditionally or subject to such conditions as they think fit, or
(b) refuse hazardous substances consent".
By section 7(2) it is provided as follows:
"In dealing with such an application the planning authority shall have regard to any material considerations and, in particular, but without prejudice to the generality of the foregoing -
(a) to any current or contemplated use of the land to which the application relates,
(b) to the way in which land in the vicinity is being used or is likely to be used,
(c) to any planning permission that has been granted for development of the land in the vicinity,
(d) to the provisions of the development plan, and
(e) to any advice which the Health and Safety Executive have given following consultations in pursuance of regulations under section 5(2)".
[6] Section 15(1) of the Act is of particular relevance in the present case. It provides as follows:
"A hazardous substances consent is revoked if there is a change in the person in control of part of the land to which it relates unless an application for the continuation of the consent has previously been made to the planning authority."
Section 15(2) then provides:
"Regulations may make provision in relation to applications under subsection (1) corresponding to any provision that may be made by regulations under section 5 or 6 in relation to applications for hazardous substances consent".
[7] The relevant subordinate legislation is to be found in The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 SI 1993 No.323. Regulation 3 defines the hazardous substances and controlled quantities thereof with which the regulatory scheme is concerned. Regulations 6 to 14 set out the procedural requirements applicable in respect of applications for and grants of hazardous substances consents providing, inter alia, for neighbour notification (regulation 6) and publication of applications (regulation 7). Regulation 11 provides as follows:
"(1) Except where the consultee has notified the planning authority in writing that it does not wish to be consulted, the authority shall, before determining an application for a hazardous substances consent, consult."
There then follows a list of prescribed consultees including the Health and Safety Executive. Regulation 12(3) provides:
"When a planning authority give notice of a decision on an application for hazardous substances consent the notice shall be in writing and where hazardous substances consent is refused or is granted subject to conditions -
(a) state the reasons for that decision; and
(b) include a statement to the effect that if the applicant is aggrieved by the decision he may appeal to the Secretary of State (Scottish Ministers) under section 33 within 6 months of the date of the notice of the decision."
Regulation 12(4) then provides:
"The planning authority shall, as soon as it is practicable, inform the following persons of the terms of their decision -
(a) the Health and Safety Executive;
(b) the Regional or District Council, where the council is not the planning authority;
(c) every other consultee (as defined in regulation 11(3)) who has made representations to them on the application;
(d) every owner who has made representations to them on the application; and
(e) every person holding a notifiable interest in neighbouring land who has made representations to them on the application".
In regulation 15 there is provision for claims to be made for "deemed consents" to which reference will be subsequently made.
[8] Circular 5/1993 which is headed Planning Controls for Hazardous Substances
The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 is a circular which was issued by the then Scottish Office. Paragraph 5 of annex A is in the following terms:
"The Health and Safety Executive (HSE) will need to be consulted on every application for hazardous substances consent. They have the expertise to assess the risks arising to persons in the vicinity from the presence of a hazardous substance. But the decision as to whether those risks are tolerable in the context of existing and potential uses of neighbouring land is one which should normally be made by an elected authority. Hence, the new provisions inserted in the 1972 Act confer responsibility for determining applications for hazardous substances consent, for vetting claims for deemed consent and for enforcing the new controls, on planning authorities . . . This means that the application for hazardous substances consent will be dealt with by the same council that would deal with any associated planning application, thereby ensuring consistency in handling of linked applications".
Paragraph 25 of annex A of the same circular provides:
"Before determining an application, the planning authority must consult the Health and Safety Executive and the other bodies set out in regulation 11, and they must give those consultees not less than 28 days to comment. With regard to consultations with HSE, authorities should note the advice in paragraphs 12-20 of annex B on HSE's advisory role".
Paragraph 12 of annex B states as follows:
"HSE's role in the land use planning system is to provide planning authorities with advice on the nature and severity of the risks presented by major hazards to people in the surrounding area so that those risks can be given due weight,...
To continue reading
Request your trial