Housing and Planning Act 1986

38 Transitional (Scotland)

(1) Until the end of the transitional period—

(a) no offence is committed under section 56L of the [1972 c. 52.] Town and Country Planning (Scotland) Act 1972; and

(b) no hazardous substances contravention notice may be issued, in relation to a hazardous substance which is on, under or over any land,

if the substance was present on, under or over the land at any time within the establishment period and—

(i) in a case in which at the commencement date notification in respect of the substance was required by any of the Notification Regulations, both the conditions specified in subsection (2) below were satisfied ; and

(ii) in a case in which at that date such notification was not so required, the condition specified in paragraph (b) of that subsection is satisfied.

(2) The conditions mentioned in subsection (1) above are—

(a) that notification required by the Notification Regulations was given before the commencement date ; and

(b) that the substance has not been present during the transitional period in a quantity greater in aggregate than the established quantity.

(3) Where a hazardous substance was present on, under or over any land at any time within the establishment period, hazardous substances consent may be claimed in respect of its presence.

(4) A claim shall be made in the prescribed form before the end of the transitional period and shall contain the prescribed information as to the presence of the substance during the establishment period and as to how and where it was kept and used immediately before the commencement date.

(5) Subject to subsections (6) to (8) below, the planning authority shall be deemed to have granted any hazardous substances consent which is claimed under subsection (2) above.

(6) If at the commencement date notification in respect of the substance was required by regulation 3 or 5 of the Notification Regulations, hazardous substances consent is only to be deemed to be granted under this section if notification in respect of the substance was given before that date in accordance with those regulations.

(7) If at the commencement date such notification was not so required, hazardous substances consent is only to be deemed to be granted under this section if an aggregate quantity of the substance not less than the controlled quantity was present at any one time within the establishment period.

(8) If it appears to the planning authority that a claim for hazardous substances consent does not comply with subsection (4) above, it shall be their duty, before the end of the period of two weeks from their receipt of the claim.—

(a) to notify the claimant that in their opinion the claim is invalid; and

(b) to give him their reasons for that opinion.

(9) Hazardous substances consent which is deemed to be granted under this section is subject to the conditions that—

(a) the maximum aggregate quantity of the substance that may be present—

(i) on, under or over the land to which the claim relates ;

(ii) on, under or over other land which is within 500 metres of it and controlled by the same person ; or

(iii) in or on a structure controlled by the same person any part of which is within 500 metres of it, at any one time shall not exceed the established quantity ; and

(b) the substance shall be kept and used in the place and manner in which information supplied in pursuance of regulations made by virtue of subsection (4) above shows that it was kept and used immediately before the commencement date; and

(c) none of the substance shall be kept or used in a vessel or container greater in capacity than the container, or the largest of the containers, in which the substance was kept or used immediately before the commencement date.

(10) In this section—

• " commencement date " means the date on which this Part of this Act comes into force;

• " the establishment period " means the period of 12 months immediately preceding the commencement date ;

• " established quantity " means, in relation to any land—

  (a)

  where before the commencement date there has been a notification in respect of a substance in accordance with any of the Notification Regulations—

  (i)

  the quantity notified or last notified before the commencement date ; or

  (ii)

  a quantity equal to twice the quantity which was so notified or last notified before the start of the establishment period,

  whichever is the greater ;

  (b)

  where a notification was not required before that date by any of those regulations, a quantity exceeding by 50 per cent, the maximum quantity which was present on, under or over the land at any one time within the establishment period ;

• " Notification Regulations " means the [S.I. 1982/1357.] Notification of Installations Handling Hazardous Substances Regulations 1982;

• " the transitional period " means the period of 6 months beginning with the commencement date ; and other expressions have the same meaning as in the [1972 c. 52.] Town and Country Planning (Scotland) Act 1972.