The Planning (Hazardous Substances) (Wales) Regulations 2015

PART 1 E+W General

Title, commencement and application E+W

1.—(1) The title of these Regulations is the Planning (Hazardous Substances) (Wales) Regulations 2015 and they come into force on 4 September 2015.

(2) These Regulations apply in relation to Wales.

Interpretation E+W

2.—(1) In these Regulations—

“the 1992 Regulations” (“Rheoliadau 1992”) means the Planning (Hazardous Substances) Regulations 1992 M1 ;

“COMAH competent authority” (“awdurdod COMAH cymwys”) means—

(a)

in relation to a nuclear site the Office of Nuclear Regulation and the Natural Resources Body for Wales acting jointly,

(b)

otherwise, the Health and Safety Executive and the Natural Resources Body for Wales acting jointly;

“commencement date” (“dyddiad cychwyn”) means 4 September 2015;

“the Directive” (“y Gyfarwyddeb”) means Directive 2012/18/EU of the European Parliament and the Council on the control of major-accident hazards involving dangerous substances [F1 as it had effect immediately before IP completion day] M2 ;

[F2 “the EIA Directive” (“y Gyfarwyddeb AEA”) means Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment as it had effect immediately before IP completion day;]

“electronic communications” (“cyfathrebiadau electronig”) has the meaning given in section 15(1) of the Electronic Communications Act 2000;

[F3 “full statement of case” (“datganiad achos llawn”) means and is comprised of—

(a)

a statement in writing containing full particulars of the case—

(i)

the applicant proposes to put forward in relation to the application referred to the Welsh Ministers pursuant to a direction under section 20 of the PHSA; or

(ii)

the appellant proposes to put forward in relation to the appeal under section 21 of the PHSA; and

(b)

copies of any supporting documents the applicant or the appellant proposes to refer to or put forward in evidence;]

[F2 “major accident” (“damwain fawr”) has the meaning given in Article 3(13) of the Directive as it had effect immediately before IP completion day;]

“nuclear site” (“safle niwclear”) has the same meaning as in section 112(1) of the Energy Act 2013 M3 ;

“the PHSA” (“y DCSP”) means the Planning (Hazardous Substances) Act 1990; and

“TCPA” (“DCGTh”) means the Town and Country Planning Act 1990 M4 .

(2) In these Regulations a reference to a numbered form is a reference to the correspondingly numbered form in Schedule 3.

(3) Parts 1 to 3 of Schedule 1 (hazardous substances and controlled quantities) are to be construed in accordance with the notes to that Schedule and a reference in that Schedule to a note is a reference to a note in Part 4 of that Schedule.

(4) References in these Regulations to Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 (“the CLP Regulation”) on classification, labelling and packaging of substances and mixtures are references to that regulation as amended from time to time.

Textual Amendments

F1 Words in reg. 2(1) inserted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(2)(a); (as amended by S.I. 2020/1324, regs. 1(2), 3(2)(a)); 2020 c. 1, Sch. 5 para. 1(1)

F2 Words in reg. 2(1) inserted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(2)(b); (as amended by S.I. 2020/1324, regs. 1(2), 3(2)(b)); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in reg. 2(1) inserted (5.5.2017) by The Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017 (S.I. 2017/547), regs. 1(1), 3 (with reg. 8)

Marginal Citations

M1 S.I. 1992/656; relevant amendments were made by section 76(7) of the Utilities Act 2000 (c. 27) and by S.I. 1999/981, S.I. 2006/1282, S.I. 2996/1283, S.I. 2009/1901, S.I. 2010/1050 and S.I. 2014/162.

M2 O.J. No. L 197, 24.7.2012, p. 1.

M3 2013 c. 32.

M4 1990 c. 8.

PART 2 E+W Hazardous substances, controlled quantities and exemptions

Hazardous substances and controlled quantities E+W

3.  For the purposes of the PHSA—

(a) hazardous substances are substances, mixtures or preparations—

(i) falling within a category in column 1 of Part 1 of Schedule 1 to these Regulations (hazardous substances and controlled quantities),

(ii) specified in column 1 of Part 2 of that Schedule, or

(iii) meeting the description in column 1 of Part 3 of that Schedule,

and present as raw materials, products, by-products, residues or intermediates; and

(b) the controlled quantity of a hazardous substance is the quantity specified in column 2 of Schedule 1 to these Regulations corresponding to that substance.

Exemptions E+W

4.  Schedule 2 to these Regulations has effect.

PART 3 E+W Hazardous substances consent procedures

Applications for hazardous substances consent E+W

5.—(1) Subject to paragraph (2) and regulation 25 (application of the PHSA to hazardous substances authorities), an application for hazardous substances consent must—

(a) be made to the hazardous substances authority;

(b) include the name and address of the applicant;

(c) include a site map and a substance location plan;

(d) include details of—

(i) the location of the land to which the application relates;

(ii) the person in control of the land to which the application relates;

(iii) each hazardous substance for which consent is sought (“relevant substance”), including the maximum quantity of each relevant substance proposed to be present;

(iv) the main activities carried out or proposed to be carried out on the land to which the application relates;

(v) how and where each relevant substance is to be kept and used;

(vi) how each relevant substance is proposed to be transported to and from the land to which the application relates,

(vii) the vicinity of the relevant land, where such details are relevant to the risks or consequences of a major accident; and

(viii) the measures taken or proposed to be taken to limit the consequences of a major accident; and

(e) be accompanied by the notices and certificates required by regulations 6 and 7.

(2) Subject to regulation 25 (application of the PHSA to hazardous substances authorities), an application to which section 13 of the PHSA applies (application for hazardous substances consent without a condition subject to which a previous consent was granted) must—

(a) be made to the hazardous substances authority;

(b) include the name and address of the applicant;

(c) include a change of location plan, if the application relates to a condition restricting the location of a hazardous substance;

(d) include in relation to any relevant consent, a copy of—

(i) the consent, where the relevant consent is a consent granted on an application under the PHSA;

(ii) the relevant claim, where the relevant consent is a consent deemed to be granted under section 11 of the PHSA; or

(iii) the relevant direction, where the relevant consent is a consent deemed to be granted under section 12;

(e) identify any condition previously imposed on the relevant consent which—

(i) it is proposed should no longer be imposed on the consent; or

(ii) it is proposed should only be imposed in a modified form;

(f) for any condition identified under sub-paragraph (e)(i), give the reasons why it should not be imposed;

(g) for any condition identified under sub-paragraph (e)(ii)—

(i) indicate the proposed modification; and

(ii) give the reasons why it should only be imposed in a modified form;

(h) describe any relevant changes in circumstances since the date of the relevant consent; and

(i) be accompanied by the notices and certificates required by regulations 6 and 7.

(3) An application under section 17 of the PHSA (application for the continuation of consent following a change of control) must—

(a) be made to the hazardous substances authority;

(b) include the name and address of the applicant;

(c) include a change of control plan;

(d) include, in relation to any relevant consent, whichever of the documents listed in paragraph (2)(d) is applicable to the relevant consent;

(e) state the date on which the change in the person in control of part of the land is to take place, where known;

(f) describe the use of each area of the site identified in the change of control plan;

(g) describe any relevant changes in circumstances since the relevant consent was granted; and

(h) be accompanied by the notices and certificates required by regulations 6 and 7.

(4) Any application to which this regulation applies and anything required to accompany it must, if requested by the hazardous substances authority, be submitted in triplicate.

(5) In this regulation—

“change of control plan” (“plan newid rheolaeth”) is a plan of the land to which the application relates, drawn to a scale of not less than 1:2,500, which identifies each area of the site under separate control after the proposed change of control;

“change of location plan” (“plan newid lleoliad”) is a plan of the land to which the application relates, drawn to a scale of not less than 1:2,500, which identifies the location of the hazardous substance at the date of the application and the proposed location requiring the application;

“relevant consent” (“cydsyniad perthnasol”) means the existing hazardous substances consent to which the application relates;

“site map” (“map safle”) is a map, reproduced from, or based on, an Ordnance Survey map with a scale of not less than 1:10,000, which identifies the land to which the application relates and shows National Grid lines and reference numbers; and

“substance location plan” (“plan lleoliad sylwedd”) is a plan of the land to which the application relates, drawn to a scale of not less than 1:2,500, which identifies—

(a)

any area of the land intended to be used for the storage of the substance;

(b)

where the substance is to be used in a manufacturing, treatment or other industrial process, the location of the major items of plant involved in that process in which the substance will be present; and

(c)

access points to and from the land.

(6) Regulations 6 to 13 apply to applications made under section 17 of the PHSA (revocation of hazardous substances consent on change of control of land) as they apply to applications for hazardous substances consent.

Publication of notices of applications E+W

6.—(1) Before making an application for hazardous substances consent to the hazardous substances authority, the applicant must, during the 21 day period immediately preceding the application—

(a) inform the public by notice published in a local newspaper circulating in the locality in which the land to which the application relates is situated, or by other appropriate means, including electronic communications, of the following matters—

(i) a description of the proposal and the address or location of the land to which the application relates;

(ii) where applicable, the fact that the proposal is, or is part of, a project that is subject to a national or transboundary environmental impact assessment [F4 (which have the same meaning as in any provision of retained EU law which implemented the EIA Directive) ];

[F5 (iia) where applicable, the fact that the project to which the proposal relates is one in respect of which the COMAH competent authority is required to consult any country in accordance with Regulation 20 of the Control of Major Accident Hazards Regulations 2015;]

(iii) that the hazardous substances authority (from which relevant information can be obtained) will decide whether or not to grant consent, and if to grant, will decide on what conditions to grant;

(iv) that representations (including comments or questions) may be made to the hazardous substances authority;

(v) details of how such representations should be made and the time period for making representations, which must be not less than 21 days beginning with the day after the day on which an application under regulation 5 is sent to the hazardous substances authority;

(vi) an indication of the times and places where, or means by which, relevant information will be made available; and

(b) subject to paragraphs (2) and (3), post a notice containing the information referred to in sub-paragraph (a) on the land to which the application relates for not less than 7 days sited and displayed in such a way as to be easily legible without entering onto the land.

(2) An applicant is not required to comply with paragraph (1)(b) if—

(a) the applicant has no right of access or other rights in respect of the land which would enable the applicant to post the notice as required; and

(b) the applicant has taken all reasonable steps to acquire the rights but has failed.

(3) The applicant is not to be treated as having failed to comply with paragraph (1)(b) if the notice is, without any fault or intention of the applicant, removed, obscured or defaced before the 7 days referred to in that paragraph have elapsed, so long as the applicant has taken reasonable steps for protection of the notice and, if need be, its replacement.

(4) An application for hazardous substances consent must not be entertained by the hazardous substances authority unless it is accompanied by—

(a) a copy of the notice referred to in paragraph (1) certified by, or on behalf of, the applicant as having been published in accordance with paragraph (1)(a);

(b) where published in a local newspaper, details of the name of the newspaper and the date of its publication;

(c) where published by other means, details of those other means; and

(d) the appropriate certificate on Form 1, signed by or on behalf of the applicant.

Textual Amendments

F4 Words in reg. 6(1)(a)(ii) substituted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(3)(a); 2020 c. 1, Sch. 5 para. 1(1)

F5 Reg. 6(1)(a)(iia) inserted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(3)(b); 2020 c. 1, Sch. 5 para. 1(1)

Notification of applications to owners E+W

7.—(1) An application for hazardous substances consent must not be entertained by the hazardous substances authority unless it is accompanied by whichever of certificates A to D set out in Form 2 is appropriate, signed by or on behalf of the applicant.

(2) The required notice referred to in certificates B and C of Form 2 must, in the case of an application for hazardous substances consent, be a notice given on Form 3 and must attach a copy of the notice required to be published under regulation 6(1)(a).

Inspection of applications E+W

8.  Following receipt of an application under regulation 5, the hazardous substances authority must ensure that a copy of the application is available for inspection at the offices of the hazardous substances authority during the period allowed for making representations pursuant to regulation 6(1).

Receipt of applications by hazardous substances authority E+W

9.—(1) When the hazardous substances authority receive a valid application for hazardous substances consent or an application for any consent, agreement or approval required by a condition imposed on a grant of hazardous substances consent, they must, as soon as practicable—

(a) acknowledge receipt of the application in writing; and

(b) send a copy of the application to the COMAH competent authority.

(2) Where, in the opinion of the hazardous substances authority, an application received by the authority is not a valid application, the authority must, as soon as practicable, notify the applicant of their opinion, giving their reasons.

(3) For the purposes of this regulation and regulations 10 and 11—

(a) an application is valid if it complies with regulation 5 and is accompanied by any documents required by regulations 6 and 7; and

(b) a valid application for hazardous substances consent is to be taken to have been received when—

(i) it is lodged with the hazardous substances authority; and

(ii) any fee required to be paid in respect of the application has been paid to that authority.

Consultation before the grant of hazardous substances consent E+W

10.—(1) Except where the body or person concerned has notified the hazardous substances authority that they do not wish to be consulted, the authority must, before determining an application for hazardous substances consent, consult—

(a) the COMAH competent authority;

(b) the county or county borough council concerned, where that council is not also the hazardous substances authority;

(c) the community or town council concerned;

(d) the fire and rescue authority concerned, where that authority is not also the hazardous substances authority;

(e) the person concerned to whom a licence has been granted under section 7(2) of the Gas Act 1986 (licencing of gas transporters) M5 ;

(f) the person concerned to whom a licence has been granted under section 6(1)(b) and (c) of the Electricity Act 1989 (licences authorising supply etc.) M6 ;

(g) where the land to which the application relates is within 2 kilometres of a royal palace, park or residence, the Secretary of State;

(h) where the land to which the application relates is in an area designated as a new town, the development corporation for the new town;

(i) where the land to which the application relates is situated within 2 kilometres of—

(i) an adjacent county, county borough, or district, the council for that county, county borough or district;

(ii) the area of an adjacent fire and rescue authority, that authority; or

(iii) an adjacent new town, the development corporation for the new town;

(j) where it appears to the hazardous substances authority dealing with the application that land in the area of any other hazardous substances authority may be affected, that authority;

(k) where the application relates to land in an area to which section 28(1) of the Wildlife and Countryside Act 1981 M7 applies (sites of special scientific interest) or where it appears to the hazardous substances authority dealing with the application that an area of particular natural sensitivity or interest may be affected, in Wales, the Natural Resources Body for Wales or in England, Natural England;

(l) where the application relates to land in an area of coal working notified to the hazardous substances authority by the Coal Authority, the Coal Authority; and

(m) where the application relates to land which is used for disposal or storage of controlled waste, the waste disposal authority concerned, where that authority is not also the hazardous substances authority.

(2) The hazardous substances authority must also, before determining an application for hazardous substances consent, consult any other persons, including any non-governmental organisation promoting environmental protection, who are affected or likely to be affected by, or have an interest in, the application, and who in the authority's opinion are unlikely to become aware of the application through the notices under regulation 6.

(3) When it consults under paragraph (1) or (2) of this regulation, the hazardous substances authority must also, within 7 days of receiving an application—

(a) notify in writing the body or person concerned that they have received an application for hazardous substances consent and inform them of the following matters—

(i) a description of the proposal and the address or location of the land to which the application relates;

(ii) where applicable, the fact that the proposal is, or is part of, a project that is subject to a national or transboundary environmental impact assessment [F6 (which have the same meaning as in any provision of retained EU law which implemented the EIA Directive) ];

[F7 (iia) where applicable, the fact that the project to which the proposal relates is one in respect of which the COMAH competent authority is required to consult any country in accordance with Regulation 20 of the Control of Major Accident Hazards Regulations 2015;]

(iii) that the hazardous substances authority (from which relevant information can be obtained) will decide whether or not to grant consent, and if to grant, will decide on what conditions to grant;

(iv) that representations (including comments or questions) may be made to the hazardous substances authority;

(v) details of how such representations should be made and the time period for making representations, which must be not less than 28 days beginning with the day after the day on which the person or body is notified that a valid application has been received by the hazardous substances authority;

(vi) an indication of the times and places where, or means by which, relevant information will be made available; and

(b) ensure that a copy of the application is available for inspection at the offices of the hazardous substances authority during the period or periods allowed for making representations.

(4) Where a hazardous substances authority is required to consult a body under—

(a) paragraph (1)(a), or

(b) paragraph (1)(k), where it appears to the authority that an area of particular natural sensitivity or interest may be affected,

the exception in paragraph (1) does not apply.

(5) In this regulation—

(a) “area of particular natural sensitivity or interest” (“ardal o sensitifrwydd naturiol penodol neu o ddiddordeb penodol”) has the same meaning as it has for the purposes of the Directive;

(b) “controlled waste” (“gwastraff a reolir”) has the meaning given to that expression by section 75(4) of the Environmental Protection Act 1990 M8 and “waste disposal authority” (“awdurdod gwaredu gwastraff”) is to be construed in accordance with section 30(2) M9 of that Act; and

(c) “county” (“sir”), “county borough” (“bwrdeistref sirol”) and “district” (“dosbarth”) have the same meanings as in the Local Government Act 1972 M10 .

Textual Amendments

F6 Words in reg. 10(3)(a)(ii) substituted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(4)(a); 2020 c. 1, Sch. 5 para. 1(1)

F7 Reg. 10(3)(a)(iia) inserted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(4)(b); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M5 1986 c. 44. Section 7 was substituted by section 5 of the Gas Act 1995 (c. 45) and subsection (2) was amended by sections 3(2) and 76 of, and paragraphs 1 and 4 of Part 1 of Schedule 6 to, the Utilities Act 2000 and by S.I. 2011/2704.

M6 1989 c. 29. Section 6 was substituted by section 30 of the Utilities Act 2000 (c. 27), subsection (1)(b) was substituted by section 136(1) of the Energy Act 2004 (c. 20) ad subsection (1)(c) was amended by section 197(9) of, and Part 1 of Schedule 23 to, the Energy Act 2004.

M7 1981 c. 69. Section 28 was substituted by paragraph 1 of Schedule 9 to the Countryside and Rights of Way Act 2000 (c. 37) and amended by section 105(1) of, and paragraph 79 of Part 1 of Schedule 11 to, the Natural Environment and Rural Communities Act 2006 (c. 16) and paragraph 2 of Part 2 of Schedule 13 to the Marine and Coastal Access Act 2009 (c. 23).

M8 1990 c. 43. Section 75(1) was amended by S.I. 2006/937. Section 75(2) was amended by S.I. 2011/988.

M9 Section 30(2) was amended by section 22(3) of, and paragraph 17(2) of Schedule 9 to, the Local Government (Wales) Act 1994. There are other amendments to this section which are not relevant to these Regulations.

M10 1972 c. 70.

Determination of applications for hazardous substances consent E+W

11.—(1) A hazardous substances authority must not determine an application for hazardous substances consent before the expiry of the period or periods allowed for making representations pursuant to regulations 6(1) and 10(3).

(2) In determining an application for hazardous substances consent, the hazardous substances authority must take into account the results of the consultation undertaken in relation to that application.

(3) Subject to paragraph (1), a hazardous substances authority must, within the period specified in paragraph (4), give the applicant written notice of their decision or notice that the application has been referred to the Welsh Ministers for determination.

(4) The period specified for the purposes of paragraph (3) is—

(a) a period of 8 weeks from the date when the application is received by the hazardous substances authority; or

(b) except where the applicant has already given notice of appeal to the Welsh Ministers, such extended period as may be agreed in writing by the applicant and the hazardous substances authority.

(5) When a hazardous substances authority give notice of a decision on an application the notice must, where hazardous substances consent is refused or is granted subject to conditions—

(a) state, clearly and precisely, their full reasons for the refusal or for any condition imposed; and

(b) include a statement to the effect that if the applicant is aggrieved by the decision the applicant may appeal to the Welsh Ministers under section 21 of the PHSA within 6 months of the date of the notice of the decision, or such longer period as the Welsh Ministers may at any time allow.

(6) The hazardous substances authority must, as soon as is practicable, inform the following persons of the terms of their decision—

(a) the Health and Safety Executive;

(b) where the land to which the decision relates is, or is on, a nuclear site, the Office for Nuclear Regulation;

(c) the county or county borough council concerned, where that council is not also the hazardous substances authority concerned;

(d) any other consultees who have made representations to them on the application; and

(e) any owners who have made representations to them on the application.

(7) The hazardous substances authority must make available for inspection at the offices of the hazardous substances authority—

(a) the contents of the decision and the reasons on which it is based, including any subsequent notices received from the COMAH competent authority pursuant to paragraph 17 of Schedule 2; and

(b) the results of the consultations held before the decision was taken and an explanation of how they were taken into account in that decision.

[F8 Notice of reference of applications to the Welsh Ministers E+W

12.— (1) On referring any application to the Welsh Ministers pursuant to a direction under section 20 of the PHSA, a hazardous substances authority must as soon as reasonably practicable—

(a) serve on the applicant a notice of reference; and

(b) send to the Welsh Ministers a copy of the application file.

(2) The hazardous substances authority must send a copy of the notice of reference to the Welsh Ministers at the same time as the notice is sent to the applicant.

(3) An applicant upon whom a notice of reference is served may choose to submit a full statement of case to the Welsh Ministers.

(4) An applicant who so chooses must send—

(a) the full statement of case so that it is received by the Welsh Ministers within 4 weeks beginning with the day on which the notice of reference is served;

(b) a copy of the full statement of case to the hazardous substances authority at the same time as it is sent to the Welsh Ministers.

(5) In this regulation—

(a) “application file” (“ffeil y cais”) means the application together with accompanying documents and all correspondence with the hazardous substances authority relating to the application; and

(b) “notice of reference” (“hysbysiad o gyfeirio”) means a notice—

(i) informing the applicant that the application has been referred to the Welsh Ministers;

(ii) setting out the reasons given by the Welsh Ministers for issuing the direction; and

(iii) notifying the applicant that—

(aa) if the applicant so chooses, the applicant may submit a full statement of case to the Welsh Ministers;

(bb) if the applicant so chooses, the full statement of case must be received by the Welsh Ministers within 4 weeks beginning with the day on which the notice of reference is served; and

(cc) a copy of the full statement of case (if applicable) must be sent to the hazardous substances authority at the same time as it is sent to the Welsh Ministers.]

Textual Amendments

F8 Reg. 12 substituted (5.5.2017) by The Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017 (S.I. 2017/547), regs. 1(1), 4 (with reg. 8)

Appeals E+W

13.—(1) Any appeal to the Welsh Ministers under section 21(1) of the PHSA (appeals against decisions relating to hazardous substances) must be made within 6 months of the date of the notice of the decision giving rise to the appeal, or within such longer period as the Welsh Ministers may, at any time, allow.

(2) Any appeal under section 21 of the PHSA (appeals against decisions or failure to take decisions relating to hazardous substances) must—

(a) be made to the Welsh Ministers on a form obtained from the Welsh Ministers;

(b) include the information specified in the form; and

(c) be accompanied by the documents specified in paragraph (3) and the certificate required by paragraph (4).

(3) The documents mentioned in paragraph (2)(c) are—

(a) the application made to the hazardous substances authority which has occasioned the appeal;

(b) any notices and certificates required by regulations 6 and 7 which accompanied the application;

(c) any correspondence with the authority relating to the application; F9 ...

(d) the notice of decision, if any [F10 ; and]

[F11 (e) a full statement of case]

(4) An appeal under section 21 of the PHSA must not be entertained by the Welsh Ministers unless it is accompanied by whichever of certificates A to D is appropriate in Form 2, signed by or on behalf of the appellant.

(5) The required notice referred to in certificates B and C must, in the case of an appeal under section 21 of the PHSA, be a notice given on Form 4.

(6) The appellant must send a copy of the [F12 completed notice of appeal form, accompanying certificate and full statement of case] to the hazardous substances authority at the same time as the appeal is made to the Welsh Ministers.

Textual Amendments

F9 Word in reg. 13(3)(c) omitted (5.5.2017) by virtue of The Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017 (S.I. 2017/547), regs. 1(1), 5(1)(a) (with reg. 8)

F10 Word in reg. 13(3)(d) substituted (5.5.2017) by The Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017 (S.I. 2017/547), regs. 1(1), 5(1)(b) (with reg. 8)

F11 Reg. 13(3)(e) inserted (5.5.2017) by The Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017 (S.I. 2017/547), regs. 1(1), 5(1)(c) (with reg. 8)

F12 Words in reg. 13(6) substituted (5.5.2017) by The Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017 (S.I. 2017/547), regs. 1(1), 5(2) (with reg. 8)

[F13 Variation of applications after notice of appeal E+W

13A.— (1) For the purposes of section 21(3E) of the PHSA the prescribed circumstance is the application to which the appeal relates contains a correctable error.

(2) An application which is varied in the circumstance prescribed in paragraph (1) is subject to such further consultation as the Welsh Ministers consider appropriate.

(3) In this regulation “correctable error” (“gwall cywiradwy”) means an error which—

(a) is corrected in order to ensure consistency in the information contained in the application and the accompanying documents; and

(b) does not alter the substance of the application.]

Textual Amendments

F13 Reg. 13A inserted (5.5.2017) by The Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017 (S.I. 2017/547), regs. 1(1), 6 (with reg. 8)

Period for determination of procedure under sections 20 and 21 of the PHSA E+W

F14 14.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14 Reg. 14 revoked (5.5.2017) by The Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017 (S.I. 2017/544), reg. 2(1), Sch. 4 (with regs. 52, 53(2)(3))

PART 4 E+W Enforcement (hazardous substances contravention notices – appeals, effect and register)

Hazardous substances contravention notices: supplementary provisions E+W

15.—(1) In addition to the matters required by section 24 of the PHSA to be included in a hazardous substances contravention notice, a notice must also identify the land to which the notice relates, whether by reference to a plan or otherwise.

(2) In addition to serving a hazardous substances contravention notice on the persons mentioned in section 24(4)(a) and (b) of the PHSA, a hazardous substances authority must serve a copy of the notice on all other persons having an interest in the land to which the notice relates.

(3) Every copy of a hazardous substances contravention notice served pursuant to section 24(4) of the PHSA must be accompanied by a statement setting out—

(a) the hazardous substances authority's reasons for issuing the notice; and

(b) the right of appeal to the Welsh Ministers against the notice, and the persons by whom, grounds upon which and time within which such an appeal may be brought.

Appeals against hazardous substances contravention notices E+W

16.  Section 174(1), (2) and (3) to (6) and sections 175(3) and (6), 176 and 177 of the TCPA apply in relation to hazardous substances contravention notices, subject to the modifications set out in Part 1 of Schedule 4.

Appeals: supplementary E+W

17.—F15 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15 Reg. 17(1) omitted (5.5.2017) by virtue of The Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017 (S.I. 2017/547), regs. 1(1), 7(1) (with reg. 8)

F16 Reg. 17(2)(3) revoked (5.5.2017) by The Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017 (S.I. 2017/544), reg. 2(1), Sch. 4 (with regs. 52, 53(2)(3))

Effect of non-compliance with hazardous substances contravention notices, etc. E+W

18.  Sections 178 to 181 of the TCPA have effect in relation to hazardous substances contravention notices, subject to the modifications set out in Part 2 of Schedule 4.

Register of hazardous substances contravention notices E+W

19.—(1) A hazardous substances authority must keep a register containing the following information in respect of each hazardous substances contravention notice issued by them—

(a) the address of the land to which the notice relates;

(b) the date of service of copies of the notice;

(c) a statement of the alleged contravention of hazardous substances control, the steps required by the notice to remedy the contravention, and the period within which such steps are to be taken;

(d) the date specified in the notice as the date on which it is to take effect;

(e) the date and effect of any variation of the notice;

(f) the date of any appeal to the Welsh Ministers against the notice and the date of the final determination of the appeal.

(2) The entry relating to the hazardous substances contravention notice and everything relating to the notice must be removed from the register if the notice is quashed by the Welsh Ministers or withdrawn.

(3) The register must include an index of entries in the register.

(4) Every entry in the register must be made within 14 days of the relevant information being available to the hazardous substances authority.

(5) The register must be kept at the principal office of the hazardous substances authority.

(6) Every register kept under this regulation must be available for inspection by the public at all reasonable hours.

Validity, etc. E+W

20.—(1) Sections 285 and 289(1), (3) to (4A) and (5) to (7) of the TCPA apply in relation to hazardous substances contravention notices, subject to the modifications set out in Part 3 of Schedule 4.

(2) Section 25(2) of the PHSA is subject to any order under section 289(4A) of the TCPA, as applied by paragraph (1).

Interpretation of TCPA for the purposes of this Part E+W

21.—(1) This regulation applies for the purposes of the interpretation of the TCPA in its application, by virtue of this Part, to hazardous substances contravention notices.

(2) Where a section of the TCPA refers to another section of the TCPA modified by these Regulations, the reference is to be read as a reference to the section as modified.

PART 5 E+W Other matters relating to hazardous substances consent (consents register, fees, application of the PHSA to hazardous substances authorities and notification of other establishments)

Consents register E+W

22.—(1) The register required by section 28(1) of the PHSA must be kept in 6 parts—

(a) Part 1 must contain details of every application for hazardous substances consent made to the hazardous substances authority and not finally determined;

(b) Part 2 must contain, in respect of every application for hazardous substances consent made to the hazardous substances authority—

(i) details of the application;

(ii) particulars of any direction given under section 20 of the PHSA;

(iii) details of the decision (if any) of the authority, including details of any conditions subject to which consent was granted and the date of the decision; and

(iv) the reference number, date and effect of any decision of the Welsh Ministers, whether on a reference under section 20 of the PHSA or on an appeal under section 21 of the PHSA;

(c) Part 3 must contain details of every order revoking or modifying hazardous substances consent made by the hazardous substance authority and the date and effect of any confirmation by the Welsh Ministers in accordance with section 15 of the PHSA;

(d) Part 4 must contain, in respect of every hazardous substances consent deemed to be granted under section 11(3) of the PHSA, details of the claim;

(e) Part 5 must contain details of every hazardous substances consent deemed to be granted by virtue of a direction given by the Welsh Ministers or a department of the government of the United Kingdom under section 12 of the PHSA; and

(f) Part 6 must contain details of any direction under section 27 of the PHSA sent to the authority by the Welsh Ministers.

(2) Where the Welsh Ministers grant hazardous substances consent under section 177 of the TCPA on the determination of an appeal against a hazardous substances contravention notice, the hazardous substances authority for the land covered by the consent must enter the date and effect of that decision in Part 2 of the register.

(3) The register must include an index of entries in the register.

(4) Every entry in the register must be made within 14 days of the relevant information being available to the hazardous substances authority.

(5) The register must be kept at the principal office of the hazardous substances authority.

(6) For the purposes of paragraph (1)(a), an application is not to be treated as finally determined unless—

(a) it has been decided by the hazardous substances authority and the period specified in regulation 13(1) has expired without any appeal having been made to the Welsh Ministers;

(b) it has been referred to the Welsh Ministers under section 20 of the PHSA or an appeal has been made to the Welsh Ministers under section 21 of the PHSA, the Welsh Ministers' decision has been issued and the period of 6 weeks specified in section 22(1) of the PHSA has expired without any application having been made to the High Court under that section;

(c) an application has been made to the High Court under section 22 of the PHSA and the matter has been determined, either by final dismissal of the application by a Court or by the quashing of the Welsh Ministers' decision and the issue of a fresh decision (without a further application under section 22 of the PHSA being duly made); or

(d) it has been withdrawn by the applicant before being determined; or

(e) an appeal under section 21 or an application under section 22 has been withdrawn by the applicant before the Welsh Ministers' decision has been issued.

(7) Where this regulation requires details of an application, direction, consent, claim form or notice to be provided in the register, the following must be provided—

(a) details of the person in control of the land to which the application, direction, consent, claim form or notice relates, where applicable; and

(b) the category in Column 1 of Part 1 of Schedule 1 to these Regulations in which any substance that is the subject of the application, direction, consent, claim form or notice falls.

Fees for applications E+W

23.—(1) Subject to paragraph (3), a fee must be paid to a hazardous substances authority on an application for hazardous substances consent as follows—

(a) if section 13(1) of the PHSA applies (new consent without previous conditions), £200;

(b) if section 13(1) of the PHSA does not apply and the quantity specified in the application as the maximum quantity proposed to be present exceeds twice the controlled quantity, £400; and

(c) in all other cases, £250.

(2) Subject to paragraph (3), a fee must be paid to a hazardous substances authority on an application for the continuation of hazardous substances consent under section 17(1) of the PHSA of £200.

(3) Where applications relating to the same site are made to two or more hazardous substances authorities, a fee is to be paid only to the authority in whose area the largest part of the site is situated and the amount payable is the amount that would have been payable if the application had fallen to be made to one authority in relation to the whole site.

(4) Any fee due in respect of an application must accompany the application when it is made to the hazardous substances authority.

(5) Any fee paid pursuant to this regulation must be refunded if the application is rejected as invalidly made.

Fees for deemed applications E+W

24.—(1) Subject to paragraph (5), a fee must be paid to the Welsh Ministers in every case where an application for hazardous substances consent is deemed to have been made by virtue of section 177(5) of the TCPA (in consequence of an appeal under section 174 of that Act against a hazardous substances contravention notice).

(2) The fee mentioned in paragraph (1) is payable by every person who has made a valid appeal against the relevant hazardous substances contravention notice and whose appeal has not been withdrawn before the date on which the Welsh Ministers issue a notice under paragraph (4).

(3) Subject to paragraph (7), the fee payable is the amount which would be payable under regulation 23 if the application were an application to which that regulation applied.

(4) The fee due must be paid at such time as the Welsh Ministers may in the particular case specify by notice in writing to the appellant.

(5) This regulation does not apply where the appellant had—

(a) before the date when the hazardous substances contravention notice was issued, applied to the hazardous substances authority for hazardous substances consent for the presence of the quantity of the substance to which the notice relates, and had paid to the authority the fee payable in respect of that application, or

(b) before the date specified in the notice as the date on which it is to take effect, made an appeal to the Welsh Ministers against the refusal of the hazardous substances authority to grant consent,

and at the date when the relevant notice was issued that application or, in the case of an appeal made before that date, that appeal, had not been determined.

(6) Any fee paid in respect of the deemed application must be refunded to the appellant by the Welsh Ministers if—

(a) the Welsh Ministers decline jurisdiction on the relevant appeal on the grounds that it does not comply with one or more of the requirements of subsections (1) to (3) of section 174 of the TCPA;

(b) the Welsh Ministers dismiss the relevant appeal in exercise of the powers under section 176(3)(a) of the TCPA (on the grounds that the appellant has failed to comply with section 174(4) of that Act);

(c) the Welsh Ministers allow the relevant appeal and quash the relevant hazardous substances contravention notice in exercise of the powers under section 176(3)(b) of the TCPA (on the grounds that the hazardous substances authority have failed to comply with regulation 17(2) of these Regulations);

(d) the relevant appeal is withdrawn with the result that there are at least 21 days between the date on which notice in writing of the withdrawal is received by the Welsh Ministers and—

(i) the date (or in the event of postponement, the latest date) appointed for the holding of an inquiry or hearing into that appeal; or

(ii) in the case of an appeal which is being dealt with by written representations, the date (or in the event of postponement, the latest date) appointed for the inspection of the site to which the notice relates;

(e) the hazardous substances authority withdraws the relevant hazardous substances contravention notice before it takes effect, or the Welsh Ministers decide that the notice is a nullity;

(f) the Welsh Ministers allow the relevant appeal on any of the grounds set out in section 174(2)(b) to (e) of the TCPA; or

(g) the Welsh Ministers allow the relevant appeal on the ground that the notice is invalid, or that it contains a defect, error or misdescription which cannot be corrected under section 176(1)(a) of the TCPA.

(7) Where a hazardous substances contravention notice is varied under section 176(1) of the TCPA otherwise than to take account of a grant of hazardous substances consent under section 177(1) of the TCPA, and the fee calculated in accordance with paragraph (3) would have been a lesser amount if the original notice had been in the terms of the varied notice, the fee payable is that lesser amount and any excess amount already paid must be refunded.

(8) In determining a fee under paragraph (7) no account is to be taken of any change in fees which takes effect after the making of the deemed application.

Application of the PHSA to hazardous substances authorities E+W

25.—(1) Any application by a hazardous substances authority for hazardous substances consent must be made to the Welsh Ministers.

(2) Regulations 5 to 8, 10 and 11(2) apply to the making of such an application as they apply to applications made to a hazardous substances authority.

(3) For the purpose of regulation 22, an application made to the Welsh Ministers by a hazardous substances authority is to be treated as an application made to the hazardous substances authority and referred to the Welsh Ministers under section 20 of the PHSA.

(4) Section 9 (other than subsection (2)(e)) of the PHSA applies in relation to an application made to the Welsh Ministers by a hazardous substances authority as it applies in relation to an application made to a hazardous substances authority.

(5) For the purpose of section 22 of the PHSA, a decision of the Welsh Ministers on an application made to them by a hazardous substances authority is to be treated as a decision under section 20 of the PHSA.

PART 6 E+W Policies and public consultation and participation

Policies E+W

26.—(1) In preparing, reviewing or modifying any relevant policy, the Welsh Ministers must ensure that the following matters are taken into account—

(a) the objectives of preventing major accidents and limiting the consequences of such accidents for human health and the environment; and

(b) the matters referred to in Article 13(2) of the Directive [F17 (with the reference in sub-paragraph (c) of that Article to Article 5 being read as a reference to regulation 5 of the Control of Major Accident Hazards Regulations 2015)].

(2) In this regulation “relevant policy” (“polisi perthnasol”) means the Wales Spatial Plan; and any current national land-use planning, transport routes or fishery harbour policy where in the opinion of the Welsh Ministers that policy concerns matters affecting the risks or consequences of a major accident.

(3) Expressions appearing both in this regulation and in the Directive have the same meaning for the purposes of this regulation as they have for the purposes of the Directive.

Textual Amendments

F17 Words in reg. 26(1)(b) inserted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(5); 2020 c. 1, Sch. 5 para. 1(1)

Plans and programmes E+W

27.—(1) Subject to paragraph (3), this regulation applies where a responsible authority proposes to prepare, review or modify a relevant plan or programme.

(2) Where this regulation applies, the responsible authority must—

(a) take such measures as it considers appropriate to ensure that public consultees are given early and effective opportunities to participate in the preparation, modification or review of the relevant plan or programme; and

(b) in doing so, take such measures as it considers appropriate to ensure that—

(i) public consultees are informed of any proposals to prepare, modify or review a relevant plan or programme;

(ii) relevant information about such proposals is made available to public consultees, including information about the right to participate in decision-making and about the authority to which comments or questions may be submitted;

(iii) public consultees are entitled to express comments and opinions when all options are open before decisions on the relevant plan and programme are made; and

(iv) any periods provided for public participation under this regulation allow public consultees sufficient time to prepare and participate in decision-making in relation to the relevant plan or programme;

(c) take into account the results of the public participation in making those decisions; and

(d) take such measures as it considers appropriate to inform the public consultees about the decisions taken and the reasons and considerations on which those decisions are based, including information about the public participation process.

(3) This regulation does not apply to a relevant plan or programme in relation to which a public participation procedure is carried out under Part 3 of the Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 M11 .

(4) In this regulation—

“public consultees” (“ymgyngoreion cyhoeddus”) means persons of whom the responsible authority is aware, including any non-governmental organisation promoting environmental protection, who are affected or likely to be affected by, or have an interest in, the relevant plan or programme in question;

“relevant plan or programme” (“cynllun neu raglen berthnasol”) means a general plan or programme relating to—

(a)

planning for new establishments pursuant to [F18 any provision of retained EU law which implemented ] Article 13 of the Directive, or

(b)

new developments around establishments where the siting or developments may increase the risk or consequences of a major accident pursuant to [F18 any provision of retained EU law which implemented ] Article 13 of the Directive; and

“responsible authority” (“awdurdod cyfrifol”) means—

(a)

the authority by which or on whose behalf a relevant plan or programme is prepared; and

(b)

where, at any particular time, that authority ceases to be responsible, or solely responsible, for taking steps in relation to the plan or programme, the person who, at that time, is responsible (solely or jointly with the authority) for taking those steps.

(5) This regulation does not apply to a Minister of the Crown (as defined in section 8(1) of the Ministers of the Crown Act 1975 M12 ) or a department of the Government of the United Kingdom.

(6) This regulation applies to a relevant plan or programme relating to the whole or any part of Wales, but this is subject to paragraph (5).

(7) Any steps taken before 4 September 2015 in relation to a relevant plan or programme may be treated as steps taken for the purposes of this regulation.

Textual Amendments

F18 Words in reg. 27(4) inserted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(6); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M11 S.I. 2004/1656 (W. 170), amended by S.I. 2011/1043; there are other amending instruments but none is relevant.

M12 1975 c. 26.

Other planning approvals for projects E+W

28.—(1) Subject to paragraph (4), this regulation applies where a consent, permission or other authorisation for a relevant project is sought from a competent authority.

(2) A competent authority must, before deciding to give any land-use planning, transport route or fishery harbour consent, permission or other authorisation for a relevant project, take such measures as it considers appropriate to ensure that—

(a) the public is informed by public notices or other appropriate means, including electronic communications where available, of the following matters early in the procedure for the taking of a decision or, at the latest, as soon as the information can reasonably be provided—

(i) the subject of the relevant project;

(ii) where applicable, the fact that a project is subject to a national or transboundary environmental impact assessment [F19 (which have the same meaning as in any provision of retained EU law which implemented the EIA Directive) ];

[F20 (iia) pan fo'n gymwys, y ffaith bod y prosiect y mae'r cynnig yn ymwneud ag ef yn un y mae'n ofynnol i'r awdurdod COMAH cymwys ymgynghori ag unrhyw wlad yn unol â Rheoliad 20 o Reoliadau Rheoli Peryglon Damweiniau Difrifol 2015;]

(iii) details of the competent authority responsible for taking the decision, from which relevant information can be obtained and to which comments or questions can be submitted;

(iv) an indication of the times and places where, or means by which, the relevant information will be made available;

(v) details of the period for transmitting comments or questions; and

(vi) the nature of possible decisions or, where there is one, the draft decision;

(b) the COMAH competent authority is consulted about the project;

(c) the main reports and advice issued to the competent authority at the time when the public concerned was informed pursuant to paragraph (2)(a) are made available to the public concerned at that time;

(d) the public concerned is entitled to express comments and opinions to the competent authority before a decision is taken; and

(e) the results of the consultations held pursuant to this regulation are taken into account in the taking of a decision.

(3) After deciding whether to give any consent, permission or other authorisation for a relevant project, the competent authority must make available to the public—

(a) the content of the decision and the reasons on which it is based, including any subsequent updates;

(b) the results of the consultations held before the decision was taken and an explanation of how they were taken into account in that decision.

(4) To the extent that the competent authority is already required by any enactment to take any of the actions set out in paragraphs (2) or (3) of this regulation, those paragraphs do not apply.

(5) In this regulation—

“competent authority” (“awdurdod cymwys”) means the Welsh Ministers, local authority or other authority with responsibility for deciding whether to give a consent, permission or other authorisation referred to in paragraph (1);

“the public concerned” (“y cyhoedd dan sylw”) means persons, including any non-governmental organisation promoting environmental protection, who are affected or likely to be affected by, or have an interest in, the taking of a decision to give the consent, permission or other authorisation referred to in paragraph (1); and

“relevant project” (“prosiect perthnasol”) means—

(a)

development falling within paragraphs (c), (ca) or (x) of Schedule 4 to the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 M13 ;

(b)

works beyond the mean low water mark which are proposed in relation to a fishery harbour in Wales either—

(i)

in an area which has been notified by the COMAH competent authority to the competent authority for the purposes of this paragraph and which are likely to result in a material increase in the number of persons living in, working in or visiting the notified area; or

(ii)

where the siting or works may otherwise increase the risk or consequences of a major accident; or

(c)

a new establishment.

(6) In this regulation, a reference to giving consent, permission or other authorisation means—

(a) granting planning permission on an application under Part 3 of the TCPA M14 (control over development);

(b) granting planning permission on an application under section 293A of that Act M15 (urgent Crown development) M16 ;

(c) granting planning permission, or upholding a decision of the local planning authority to grant planning permission (whether or not subject to the same conditions and limitations as those imposed by the local planning authority), on determining an appeal under section 78 of that Act (right to appeal against planning decisions) M17 in respect of such an application;

(d) granting planning permission under—

(i) section 141(2)(a) of that Act (action in relation to purchase notice); or

(ii) section 177(1)(a) of that Act (grant or modification of planning permission on appeals against enforcement notices);

(e) directing under subsection (1) or (2A) of section 90 of that Act (development with government authorisation) that planning permission is deemed to be granted;

(f) making—

(i) a local development order under section 61A of the TCPA M18 ;

(ii) a simplified planning zone under section 82 of that Act;

(iii) an order designating an enterprise zone under Schedule 32 to the Local Government, Planning and Land Act 1980 M19 ;

(iv) an order under section 102 of the TCPA (orders requiring discontinuance of use or alteration or removal of buildings or works) M20 , including an order made under that section by virtue of section 104 of that Act (powers in relation to section 102 orders) which grants planning permission, or confirming any such order under section 103 of that Act (confirmation of section 102 orders);

(v) an order under paragraph 1 of Schedule 9 to that Act (order requiring discontinuance of mineral working) M21 , including an order made under that paragraph by virtue of paragraph 11 of that Schedule to that Act (powers in relation to orders under Schedule 9) which grants planning permission;

(vi) an order under section 14(1) (Ministers' powers, on application of harbour authorities, or others, to make orders for securing harbour efficiency, etc.) or section 16(1) or (2) (Ministers' powers, on application of intending undertakers, or others, to make orders conferring powers for improvement, construction, etc., of harbours) of the Harbours Act 1964 M22 ;

(g) authorising works in a fishery harbour pursuant to powers contained in an order under section 14(1) or 16(1) or (2) of the Harbours Act 1964;

(h) directing under the following provisions that if an application is made for planning permission it must be granted under—

(i) section 141(3) of that Act (action in relation to purchase notice); or

(ii) section 35(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (action in relation to listed building purchase notice) M23 ;

(i) making an order under any of the following provisions of the Highways Act 1980 M24 in relation to works carried out by the Welsh Ministers—

(i) section 10 (general provision as to trunk roads);

(ii) section 14 (powers as respects roads that cross or join trunk or classified roads);

(iii) section 18 (supplementary orders relating to special roads);

(j) making a scheme under section 16 of the Highways Act 1980 in relation to works carried out by the Welsh Ministers;

(k) directing under section 12 of the PHSA that hazardous substances consent is deemed to be granted;

(l) granting hazardous substances consent under section 20 of the PHSA; and

(m) granting hazardous substances consent under section 177(1)(a) of the TCPA (as applied to hazardous substances contravention notices and modified by regulation 16 and Schedule 4).

(7) This regulation applies to a decision to carry out works under section 24(1) of the Highways Act 1980 (construction of new highways), which does not relate to the exercise of any of the provisions of paragraph (6)(i) or (j) as if it were “a consent, permission or other authorisation” referred to in paragraph (1).

(8) In relation to any consent, permission or authorisation falling within paragraph (6) or (7) which is capable of being varied or modified, the modification or variation must be treated by the competent authority as if it is a consent, permission or other authorisation for a relevant project for the purposes of this regulation where that modification or variation authorises development falling within paragraph (x) of the Table in Schedule 4 to the Town and Country Planning (Development Management Procedure) (Wales) Order 2012.

(9) In this regulation, “new establishment” (“sefydliad newydd”) has the same meaning as in Article 3 of the Directive.

Textual Amendments

F19 Words in reg. 28(2)(a)(ii) substituted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(7)(a); 2020 c. 1, Sch. 5 para. 1(1)

F20 Reg. 28(2)(a)(iia) inserted (31.12.2020) by The Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (S.I. 2019/456), regs. 1, 5(7)(b); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M13 S.I. 2012/801 (W. 110), amended by S.I. 2014/469 and S.I. 2013/755 (W. 90). There are other amendments which are not relevant to this instrument.

M14 1990 c. 8. The functions of the Ministers of the Crown under the TCPA except (a) section 90(2), (b) the functions of the Ministers of the Crown other than the Secretary of State for Wales under sections 90(1), 101 and Schedule 8, 170(12), 238(1)(a), 239(1)(a), 263(3) and (4), 266, 268, 279(5) and (6), 305, 325(9) and 336(3); (c) the functions of the Secretary of State for Trade and Industry under section 272(5) and (6); and (d) the Treasury functions under sections 293(3) and 336(2) were transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) as amended by the National Assembly for Wales (Transfer of Functions) Order (S.I. 2000/253). There are other limitations on that transfer which are not relevant to these Regulations. Those functions were subsequently transferred to the Welsh Ministers by section 162 of and paragraph 30 of Schedule 11 to the Government of Wales Act 2006.

M15 Section 293A was inserted by section 82(1) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) (c. 5). Section 118(3) of the 2004 Act provides that a reference in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 to an enactment amended by this Act must be taken to be a reference to the enactment as so amended.

M16 Section 293A was inserted by section 82(1) of the 2004 Act.

M17 Section 78 was amended by section 17(2) of Planning and Compensation Act 1991 (c. 34), sections 40(2)(e) and 43(2) of the 2004 Act and paragraphs 1 and 3 of Schedule 10 and paragraphs 1 and 2 of Schedule 11 to the Planning Act 2008 (c. 9).

M18 Section 61A was inserted by section 40(1) of the 2004 Act and has been amended by sections 188 and 238 of, and Schedule 13 to the Planning Act 2008.

M19 1980 c .65.

M20 Section 102 was amended by paragraph 6 of Schedule 1 and paragraph 21 of Schedule 7 to the Planning and Compensation Act 1991 (c. 34).

M21 Paragraph 1 of Schedule 9 was amended by paragraph 15 of Schedule 1 to the Planning and Compensation Act 1991 (c. 34).

M22 1964 c. 40. The functions of the Minister in relation to fishery harbours under sections 14 and 16 of the PHSA were transferred to the Welsh Ministers by article 2 of and Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672), as amended by the National Assembly for Wales (Transfer of Functions) Order 2000 (S.I. 2000/253).

M23 1990 c. 9.

M24 1980 c. 66. Section 10(2)(a)(i) was amended by section 22(2)(a) of the New Roads and Street Works Act 1991. There are other amendments to the Act which are not relevant to this instrument.

PART 7 E+W Revocations, amendments, savings and transitional provisions and application to the Crown

Interpretation of this Part E+W

29.  In this Part, “ commencement date” (“dyddiad cychwyn”) means 4 September 2015.

Revocations E+W

30.—(1) The following Regulations are revoked to the extent specified, subject to the savings and transitional provisions set out in this Part—

(1) Regulations revoked	(2) References	(3) Extent of revocation
The Planning (Hazardous Substances) Regulations 1992	S.I. 1992/656	The whole Regulations
The Planning (Control of Major-Accident Hazards) Regulations 1999	S.I. 1999/981	The whole Regulations
The Town and Country Planning (Application of Subordinate Legislation to the Crown) Order 2006	S.I. 2006/1282	Article 10
The Planning (Hazardous Substances) (Amendment) (Wales) Regulations 2010	S.I. 2010/450 (W.48)	The whole Regulations
The Planning (Hazardous Substances) (Amendment) (Wales) Regulations 2014	S.I. 2014/375 (W. 43)	The whole Regulations
The Planning (Hazardous Substances) (Determination of Procedure) (Prescribed Period) (Wales) Regulations 2014	S.I. 2014/2777 (W. 283)	The whole Regulations

Transitional applications and appeals E+W

31.—(1) If an application or appeal relating to a hazardous substances consent made in accordance with the 1992 Regulations has not been determined by the commencement date, the application or appeal is taken to be made under these Regulations.

(2) Anything done under the 1992 Regulations in relation to that application or appeal before the commencement date is taken to be done under these Regulations.

Interpretation of existing consents E+W

32.—(1) In this regulation, “ relevant consent” (“cydsyniad perthnasol”) means a hazardous substances consent granted under the 1992 Regulations or a deemed consent claimed before the commencement date under which the following are expressly authorised—

(a) the presence of a category of substance listed in column 1 of Part B of Schedule 1 to the 1992 Regulations; or

(b) the presence of a substance named in column 1 of Part A of Schedule 1 to the 1992 Regulations.

(2) This regulation applies to a relevant consent where the category or substance referred to in paragraph (1) above—

(a) is not contained in Schedule 1 to these Regulations; or

(b) is differently named or defined under Schedule 1 to these Regulations.

(3) Where this regulation applies references in a relevant consent to a category or substance referred to in paragraph (1) are to be interpreted as if these Regulations had not come into force.

Saving for deemed consent conditions E+W

33.—(1) This regulation applies to any consent that was deemed to be granted under section 11 or 30B of the PHSA before the commencement date.

(2) In relation to any consent to which this regulation applies—

(a) the conditions set out in Schedule 3 of the 1992 Regulations continue to apply (unless any condition was removed following an application under section 13 of the PHSA); and

(b) those conditions continue to be interpreted in accordance with regulation 15 of the 1992 Regulations.

Notification of other establishments E+W

34.—(1) This regulation applies where—

(a) hazardous substance consent would be required but for the exemption in paragraph 12 of Schedule 2 to these Regulations M25 ; and

(b) a hazardous substance authority receives from the person in control of the land to which the notice relates a notice in writing which contains—

(i) details of the location of the land to which the notice relates and the person in control of the land;

(ii) details of the hazardous substances held at the site, including the quantities; and

(iii) an explanation of why paragraph 12 of Schedule 2 to these Regulations applies.

(2) The hazardous substances authority must, as soon as practicable after receiving the notice, send the COMAH competent authority a copy of the notice.

(3) The COMAH competent authority must, within 8 weeks of receiving notification from the hazardous substances authority under paragraph (2), determine whether the notice concerns an establishment within the meaning of the Directive and, if so, notify the local planning authority for the area in which the establishment is located.

Marginal Citations

M25 Presence of established substances.

Amendments E+W

35.  Schedule 5 to these Regulations has effect.

Application to the Crown E+W

36.  These Regulations apply to the Crown as if, in Schedule 2 to these Regulations, after paragraph 1 there were inserted—

“Military land

(1A) Hazardous substances consent is not required for the presence of a hazardous substance in, on, over or under land at military establishments, installations or storage facilities.”

Carl Sargeant

Minister for Natural Resources, one of the Welsh Ministers