Office of Public Sector Information
(3) If an application relates to more than one consent, the authority may make different determinations in relation to each.
(4) If a consent relates to more than one hazardous substance, the authority may make different determinations in relation to each.
(5) It shall be the duty of a planning authority, when continuing hazardous substances consent, to attach to the consent either—
(a) a statement that is unchanged in relation to the matters included in it by virtue of sections 7(4) and 8(3), or
(b) a statement of any change in respect of those matters.
(6) The modifications which a planning authority may make by virtue of subsection (1)(a) include, without prejudice to the generality of that provision, making the consent subject to conditions with respect to any of the matters mentioned in section 8(1); and section 8(2) shall apply as respects those conditions as it applies to the grant of consent subject to conditions.
(7) Where any application under section 15(1) is made to a planning authority then, unless within such period as may be prescribed, or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the authority either—
(a) give notice to the applicant of their decision on the application, or
(b) give notice to him that the application has been referred to the Secretary of State in accordance with directions given under section 18,
the application shall be deemed to have been granted.
Where on an application under section 15(1) the planning authority modify or revoke the hazardous substances consent, they shall pay to the person in control of the whole of the land before the change in control by virtue of which the application was made compensation in respect of any loss or damage sustained by him and directly attributable to the modification or revocation.
(1) The Secretary of State may give directions requiring applications for hazardous substances consent or applications under section 15(1) to be referred to him instead of being dealt with by planning authorities.
(2) A direction under this section—
(a) may be given either to a particular planning authority or to planning authorities generally, and
(b) may relate either to a particular application or to applications of a class specified in the direction.
(3) Any application in respect of which a direction under this section has effect shall be referred to the Secretary of State.
(4) Before determining an application referred to him under this section, the Secretary of State shall, if either the applicant or the planning authority so wish, give to each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.
(5) The decision of the Secretary of State on any application referred to him under this section shall be final.
(1) Where a planning authority—
(a) refuse an application for hazardous substances consent, an application under section 15(1) or an application for any consent, agreement or approval of the authority required by a condition imposed on the grant of such consent, or
(b) grant it subject to conditions,
the applicant may appeal to the Secretary of State.
(2) A person who has made an application for hazardous substances consent may also appeal to the Secretary of State if the planning authority have not given to the applicant—
(a) notice of their decision on the application, or
(b) notice that the application has been referred to the Secretary of State in accordance with directions given under section 18,
within such period as may be prescribed, or within such extended period as may at any time be agreed upon in writing between the applicant and the planning authority.
(3) An appeal under this section shall be made by notice served within such time and in such manner as may be prescribed.
(4) For the purposes of the application of subsection (5) in relation to an appeal under subsection (2), the authority shall be deemed to have refused the application in question.
(5) On an appeal under this section, the Secretary of State may—
(a) allow or dismiss the appeal, or
(b) reverse or vary any part of the decision of the planning authority (whether the appeal relates to that part of it or not),
and may deal with the application as if it had been made to him in the first instance.
(6) Before determining an appeal under this section the Secretary of State shall, if either the appellant or the planning authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.
(7) If the Secretary of State proposes to reverse or vary any part of the decision of the planning authority to which the appeal does not relate, he shall give notice of his intention to the planning authority and to the appellant and shall give each of them an opportunity of making representations about his proposals.
(8) The decision of the Secretary of State on an appeal under this section shall be final.
(9) If at any time before or during the determination of an appeal under this section it appears to the Secretary of State that the appellant is responsible for undue delay in the progress of the appeal, he may—
(a) give the appellant notice that the appeal will be dismissed unless the appellant takes, within the period specified in the notice, such steps as are specified in the notice for the expedition of the appeal, and
(b) if the appellant fails to take those steps within that period, dismiss the appeal accordingly.
(10) The Schedule to this Act (which makes provision regarding the determination of certain appeals by a person appointed by the Secretary of State) applies to appeals under this section.
(1) If any person is aggrieved by any decision of the Secretary of State under section 18 or 19 and wishes to question the validity of that decision on the grounds—
(a) that it is not within the powers of this Act, or
(b) that any of the relevant requirements have not been complied with in relation to that decision,
he may, within 6 weeks from the date on which the decision is taken, make an application to the Court of Session under this section.
(2) Without prejudice to subsection (1), if the planning authority who made the decision on the application to which the proceedings relate or, as the case may be, referred the application wish to question the validity of any such decision as is mentioned in that subsection on any of the grounds there mentioned, the authority may, within 6 weeks from the date on which the decision is taken, make an application to the Court of Session under this section.
(3) On any application under this section the Court of Session—
(a) may by interim order suspend the operation of the decision in question until the final determination of the proceedings;
(b) if satisfied that the decision in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that decision.
(4) In this section “the relevant requirements”, in relation to any decision, means any requirements of this Act or the principal Act or of the [1992 c. 53.] Tribunals and Inquiries Act 1992 or of any order, regulations or rules made under this Act or under either of those Acts which are applicable to that decision.
(5) Except as provided by this section, the validity of any such decision as is mentioned in subsection (1) shall not be questioned in any legal proceedings whatsoever.
(6) Nothing in subsection (5) shall affect the exercise of any jurisdiction of any court in respect of any refusal or failure on the part of the Secretary of State to take any such decision as is there mentioned.
(1) Subject to the following provisions of this section, if there is a contravention of hazardous substances control, the appropriate person shall be guilty of an offence.
(2) There is a contravention of hazardous substances control if—
(a) a quantity of a hazardous substance equal to or exceeding the controlled quantity is or has been present on, over or under land and either—
(i) there is no hazardous substances consent for the presence of the substance, or
(ii) there is hazardous substances consent for its presence but the quantity present exceeds the maximum quantity permitted by the consent, or
(b) there is or has been a failure to comply with a condition subject to which a hazardous substances consent was granted.
(3) In subsection (1) “the appropriate person” means—
(a) in relation to a contravention falling within paragraph (a) of subsection (2)—
(i) any person knowingly causing the substance to be present on, over or under the land;
(ii) any person allowing it to be so present; and
(b) in relation to a contravention falling within paragraph (a) or (b) of that subsection, the occupier of the land.
(4) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £20,000, and
(b) on conviction on indictment, to a fine.
(5) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.
(6) In any proceedings for an offence under this section it shall be a defence for the accused to prove—
(a) that he took all reasonable precautions and exercised all due diligence to avoid commission of the offence, or
(b) that commission of the offence could be avoided only by the taking of action amounting to a breach of a statutory duty.
(7) In any proceedings for an offence consisting of a contravention falling within subsection (2)(a), it shall be a defence for the accused to prove that at the time of the alleged commission of the offence he did not know, and had no reason to believe—
(a) if the case falls within paragraph (a)(i)—
(i) that the substance was present, or
(ii) that it was present in a quantity equal to or exceeding the controlled quantity;
(b) if the case falls within paragraph (a)(ii), that the substance was present in a quantity exceeding the maximum quantity permitted by the consent.
(8) In any proceedings for an offence consisting of a contravention falling within subsection (2)(b), it shall be a defence for the accused to prove that he did not know, and had no reason to believe, that he was failing to comply with a condition subject to which hazardous substances consent had been granted.
(1) Where it appears to the planning authority that there is or has been a contravention of hazardous substances control they may issue a notice—
(a) specifying the alleged contravention, and
(b) requiring such steps as may be specified in the notice to be taken to remedy wholly or partly the contravention,
if they consider it expedient to do so having regard to any material consideration.
(2) Such a notice is referred to in this Act as a “hazardous substances contravention notice”.
(3) A planning authority shall not issue a hazardous substances contravention notice where it appears to them that a contravention of hazardous substances control can be avoided only by the taking of action amounting to a breach of a statutory duty.
(4) A copy of a hazardous substances contravention notice shall be served—
(a) on the owner, the lessee and the occupier of the land to which it relates, and
(b) on such other persons as may be prescribed.
(5) A hazardous substances contravention notice shall also specify—
(a) a date not less than 28 days from the date of service of copies of the notice as the date on which it is to take effect, and
(b) in respect of each of the steps required to be taken to remedy the contravention of hazardous substances control, the period from the notice taking effect within which the step is to be taken.
(6) Where a planning authority issue a hazardous substances contravention notice the steps required by the notice may, without prejudice to the generality of subsection (1)(b), if the authority think it expedient, include a requirement that the hazardous substance be removed from the land.
(7) Where a notice includes such a requirement, it may also contain a direction that at the end of such period as may be specified in the notice any hazardous substances consent for the presence of the substance shall cease to have effect or, if it relates to more than one substance, shall cease to have effect so far as it relates to the substance which is required to be removed.
(8) The planning authority may withdraw a hazardous substances contravention notice (without prejudice to their power to issue another) at any time before or after it takes effect.
(9) If they do so, they shall immediately give notice of the withdrawal to every person who was served with a copy of the notice or would, if the notice were reissued, be served with a copy of it.
(1) The Secretary of State may by regulations—
(a) specify matters which are to be included in hazardous substances contravention notices, in addition to those which are required to be included in them by section 22;
(b) provide—
(i) for appeals to him against hazardous substances contravention notices;
(ii) for the persons by whom, grounds upon which and time within which such an appeal may be brought;
(iii) for the procedure to be followed on such appeals;
(iv) for the directions that may be given on such an appeal;
(v) for the application to such appeals, subject to such modifications as the regulations may specify, of any of the provisions of sections 130 to 134, 237(3) and 239 of the principal Act;
(c) direct that any of the provisions of sections 135 to 138, 140, 141, 143(1) to (6), 144, 145 and 147 of that Act shall have effect in relation to hazardous substances contravention notices subject to such modifications as he may specify in the regulations;
(d) make such other provision as he considers necessary or expedient in relation to hazardous substances contravention notices.
(2) If any person appeals against a hazardous substances contravention notice, the notice shall have no effect pending the final determination or the withdrawal of the appeal.
(3) Regulations under this section may make different provisions for different cases or descriptions of cases.
(1) A planning authority may waive or relax any requirement of a hazardous substances contravention notice issued by them and, in particular, may extend any period specified in accordance with section 22(5)(b) in the notice.
(2) The powers conferred by subsection (1) may be exercised before or after the notice takes effect.
(3) The planning authority shall, immediately after exercising those powers, give notice of the exercise to every person who has been served with a copy of the hazardous substances contravention notice or would, if the notice were reissued, be served with a copy of it.
(1) Whether or not they have exercised or propose to exercise any of their other powers under this Act or the principal Act, a planning authority may seek to restrain or prevent any actual or apprehended breach of any of the controls provided for by or under this Act by means of an application for interdict.
(2) On an application under subsection (1) the court may grant such interdict as it thinks appropriate for the purpose of restraining or preventing the breach.
(3) In this section “the court” means the Court of Session or the sheriff.
(1) If it appears to the Secretary of State—
(a) either—
(i) that the community or part of it is being or is likely to be deprived of an essential service or commodity, or
(ii) that there is or is likely to be a shortage of such a service or commodity affecting the community or part of it, and
(b) that the presence of a hazardous substance on, over or under land specified in the direction, in circumstances such that hazardous substances consent would be required, is necessary for the effective provision of that service or commodity,
he may direct that, subject to such conditions or exceptions as he thinks fit, the presence of the substance on, over or under the land is not to constitute a contravention of hazardous substances control so long as the direction remains in force.
(2) A direction under this section—
(a) may be withdrawn at any time, and
(b) shall in any case cease to have effect at the end of the period of 3 months beginning with the day on which it was given, but without prejudice to the Secretary of State’s power to give a further direction.
(3) The Secretary of State shall send a copy of any such direction to the planning authority for the land.
(1) Every planning authority shall keep, in such manner as may be prescribed, a register containing such information as may be so prescribed with respect to—
(a) applications for hazardous substances consent made to that authority,
(b) applications under section 15(1) made to that authority,
(c) hazardous substances consent having effect by virtue of section 9 or 10 with respect to land for which that authority is the planning authority,
(d) revocations or modifications of hazardous substances consent granted with respect to such land, and
(e) directions under section 26 sent to the authority by the Secretary of State,
and every such register shall also contain such information as may be prescribed as to the manner in which applications for hazardous substances consent have been dealt with.
(2) Every register kept under this section shall be available for inspection by the public at all reasonable hours.
(1) Nothing in—
(a) any hazardous substances consent granted or deemed to be granted or having effect by virtue of this Act, or
(b) any hazardous substances contravention notice issued under section 22,
shall require or allow anything to be done in contravention of any of the relevant statutory provisions or any prohibition notice or improvement notice served under or by virtue of any of those provisions.
(2) To the extent that such a consent or notice purports to require or allow any such thing to be done, it shall be void.
(3) Where it appears to a planning authority who have granted, or are deemed to have granted, a hazardous substances consent or who have issued a hazardous substances contravention notice that the consent or notice or part of it is rendered void by subsection (2) the authority shall, as soon as is reasonably practicable, consult the Health and Safety Executive with regard to the matter.
(4) If the Health and Safety Executive advise the authority that the consent or notice is rendered wholly void, the authority shall revoke it.
(5) If they advise that part of the consent or notice is rendered void, the authority shall so modify it as to render it wholly operative.
(6) In this section “relevant statutory provisions”, “improvement notice” and “prohibition notice” have the same meanings as in Part I of the [1974 c. 37.] Health and Safety at Work etc. Act 1974.
(1) The Secretary of State may by regulations make provision for fees of the prescribed amount in respect of applications for, or for the continuation of, hazardous substances consent—
(a) made to an urban development corporation to be paid to the corporation;
(b) referred to him under section 18 to be paid to him;
(c) deemed to have been made to him under section 133(7) of the principal Act by virtue of regulations made under section 23 to be paid to him.
(2) Regulations made under this section may provide for—
(a) the transfer to the Secretary of State of any fee received by a planning authority in respect of an application referred to in paragraph (b) or (c) of subsection (1);
(b) the remission or refunding of a prescribed fee (in whole or in part) in prescribed circumstances or in pursuance of a direction given by him;
and the regulations may make different provision for different areas or for different cases or descriptions of cases.
(3) Section 252 of the principal Act applies to an application for the continuation of hazardous substances consent.
(1) This Act shall have effect, subject to such exceptions and modifications as may be prescribed, in relation to granting hazardous substances consent for planning authorities.
(2) Subject to section 10, regulations made by virtue of subsection (1) may in particular provide for securing—
(a) that any application by a planning authority for hazardous substances consent shall be made to the Secretary of State;
(b) that any order or notice authorised to be made, issued or served under this Act by a planning authority shall instead be made, issued or served by the Secretary of State.
(1) Notwithstanding any interest of the Crown in Crown land, but subject to subsection (2), any restrictions imposed or powers conferred by any of sections 2 to 29 (except sections 20 and 25) shall apply and be exercisable in relation to Crown land, to the extent of any interest in it for the time being held otherwise than by or on behalf of the Crown.
(2) Except with the consent of the appropriate authority, no order or notice shall be made or served under any of the provisions of section 12, 13 or 22 in relation to land which for the time being is Crown land.
(3) In this section—
“Crown land” means land in which there is a Crown interest, and
“Crown interest” means an interest belonging to Her Majesty in right of the Crown, or belonging to a government department, or held in trust for Her Majesty for the purposes of a government department.
(4) A person who is entitled to occupy Crown land by virtue of a contract in writing shall be treated for the purposes of subsection (1) as having an interest in land.
(5) For the purposes of this section “the appropriate authority”, in relation to any land—
(a) in the case of land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners,
(b) in relation to any other land belonging to Her Majesty in right of the Crown, means the government department having the management of that land, and
(c) in the case of land belonging to a government department or held in trust for Her Majesty for the purposes of a government department, means that department.
(6) If any question arises as to what authority is the appropriate authority in relation to any land, that question shall be referred to the Treasury, whose decision shall be final.
(1) This section has effect for the purpose of enabling Crown land, or an interest in Crown land, to be disposed of with the benefit of hazardous substances consent.
(2) Notwithstanding the interest of the Crown in the land in question, an application for any such consent may be made by—
(a) the appropriate authority, or
(b) any person authorised by that authority in writing,
and, subject to subsections (3) and (4), all the statutory provisions relating to the making and determination of any such application shall accordingly apply as if the land were not Crown land.
(3) Any hazardous substances consent granted by virtue of this section shall apply only—
(a) to the presence of the substance to which the consent relates after the land in question has ceased to be Crown land, and
(b) so long as that land continues to be Crown land, to the presence of the substance by virtue of a private interest in the land.
(4) The Secretary of State may by regulations—
(a) modify or exclude—
(i) any of the statutory provisions referred to in subsection (2), and
(ii) any other statutory provisions,
in their application to consents granted by virtue of this section,
(b) make provision for requiring a planning authority to be notified of any disposal of, or of an interest in, any Crown land in respect of which an application has been made by virtue of this section, and
(c) make such other provision in relation to the making and determination of applications by virtue of this section as he thinks necessary or expedient.
(5) This section shall not be construed as affecting any right to apply for hazardous substances consent in respect of Crown land in a case in which such an application can be made by virtue of a private interest in the land.
(6) In this section—
“private interest” means an interest which is not a Crown interest,
“statutory provisions” means provisions contained in or having effect under any enactment,
and references to the disposal of an interest in Crown land include references to the grant of an interest in such land.
(7) Subsections (3), (5) and (6) of section 31 apply for the purposes of this section as they apply for the purposes of that section.
(8) A person who is entitled to occupy Crown land by virtue of a contract in writing shall be treated for the purpose of this section as having an interest in land and references to the disposal or grant of an interest in Crown land and to a private interest in such land shall be construed accordingly.
(1) Any person duly authorised in writing by the Secretary of State or by a planning authority may at any reasonable time enter any land for the purpose of surveying it in connection with—
(a) any application for hazardous substances consent, or
(b) any proposal to issue a hazardous substances contravention notice.
(2) Any person duly authorised in writing by the Secretary of State or by a planning authority may at any reasonable time enter any land for the purpose of ascertaining whether an offence appears to have been committed under section 21.
(3) Any person who is an officer of the Valuation Office or a person duly authorised in writing by the Secretary of State or by a planning authority may at any reasonable time enter upon any land for the purpose of surveying it, or estimating its value, in connection with a claim for compensation in respect of that land or any other land made by virtue of section 14 or 17.
(4) Any person duly authorised in writing by the Secretary of State or a planning authority may at any reasonable time enter any land in respect of which a hazardous substances contravention notice has been served for the purpose of ascertaining whether the notice has been complied with.
(5) Subject to sections 34 and 35, any power conferred by this section to survey land shall be construed as including power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals in it.
(1) If in relation to rights of entry exercised under section 33, the sheriff is satisfied—
(a) that there are reasonable grounds for entering any land for any of the purposes mentioned in that section, and
(b) that—
(i) admission to the land has been refused, or a refusal is reasonably apprehended, or
(ii) the case is one of urgency,
he may issue a warrant authorising any person duly authorised in writing to enter the land.
(2) For the purposes of subsection (1)(b)(i) admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period.
(3) A warrant authorises entry on one occasion only and that entry must be—
(a) within one month from the date of the issue of the warrant, and
(b) at a reasonable hour, unless the case is one of urgency.
(1) A person authorised to enter any land in pursuance of a right of entry conferred under or by virtue of section 33 or 34 (referred to in this section as “a right of entry”)—
(a) shall, if so required, produce evidence of his authority and state the purpose of his entry before so entering,
(b) may take with him such other persons as may be necessary, and
(c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it.
(2) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) If any damage is caused to land or moveable property in the exercise of a right of entry, compensation may be recovered by any person suffering the damage from the authority who gave the written authority for the entry or, as the case may be, the Secretary of State; and section 86 of the principal Act shall apply in relation to compensation under this subsection as it applies in relation to compensation under Part IV of the principal Act.
(4) If any person who enters any land in exercise of a right of entry discloses to any person any information obtained by him while on the land as to any manufacturing process or trade secret, he shall be guilty of an offence.
Planning (Hazardous Substances) (Scotland) Act 1997