Scottish Court of Session Decisions

"The Site was at one time part of a chemical works operated by ICI and later transferred first to Zeneca (which later became Astra Zeneca) and then in part to Avecia Fine Chemicals Limited ("Avecia"). The Applicant (i.e. the second respondents) took over most of Avecia's premises in about 2005. The Applicant's (second respondent's) premises at the Site now include most of the process and storage plant previously owned by Avecia. A small part of Avecia's former premises, however, is now controlled by FujiFilm, which on 30 March 2006 made its own hazardous substances consent application . . .".

The statutory framework
[4] The primary legislation concerned is the Planning (Hazardous Substances) (Scotland) Act 1997. Section 2(1) provides as follows:

"Subject to the provisions of this Act, the presence of a hazardous substance on, over or under land requires the consent of the planning authority (in this Act referred to as 'hazardous substances consent')."

Section 5(1) of the 1997 Act goes onto provide as follows:

"Provision may be made by regulations with respect to -

(a) the form and manner in which applications under this Act for hazardous substances consent are to be made,

(b) the particulars which they are to contain and the evidence by which they are to be verified,

(c) the manner in which they are to be advertised, and

(d) the time within which they are to be dealt with."

Section 5(2) then provides as follows:

"Regulations may -

(a) require an applicant for hazardous substances consent or the planning authority or both to give publicity to an application for hazardous substance consent in such manner as may be prescribed;

(b) require the planning authority to conduct appropriate consultations before determining applications for hazardous substances consent;

(c) provide for the manner in which such a consultation is to be carried out and the time within which -

(i) such a consultation;

(ii) any stage in such a consultation

is to be completed

(d) require the planning authority to determine applications for hazardous substances consent within such time as may be prescribed;

(e) require the planning authority to give prescribed persons or bodies prescribed information about applications for hazardous substances consent including information as to the manner in which such applications have been dealt with".

Section 5(3) then provides:

"In subsection (2) 'appropriate consultations' means consultations with the Health and Safety Executive and with such persons or bodies as may be prescribed".

"(a) grant hazardous substances consent, either unconditionally or subject to such conditions as they think fit, or

(b) refuse hazardous substances consent".

By section 7(2) it is provided as follows:

"In dealing with such an application the planning authority shall have regard to any material considerations and, in particular, but without prejudice to the generality of the foregoing -

(a) to any current or contemplated use of the land to which the application relates,

(b) to the way in which land in the vicinity is being used or is likely to be used,

(c) to any planning permission that has been granted for development of the land in the vicinity,

(d) to the provisions of the development plan, and

(e) to any advice which the Health and Safety Executive have given following consultations in pursuance of regulations under section 5(2)".

"A hazardous substances consent is revoked if there is a change in the person in control of part of the land to which it relates unless an application for the continuation of the consent has previously been made to the planning authority."

Section 15(2) then provides:

"Regulations may make provision in relation to applications under subsection (1) corresponding to any provision that may be made by regulations under section 5 or 6 in relation to applications for hazardous substances consent".

"(1) Except where the consultee has notified the planning authority in writing that it does not wish to be consulted, the authority shall, before determining an application for a hazardous substances consent, consult."

There then follows a list of prescribed consultees including the Health and Safety Executive. Regulation 12(3) provides:

"When a planning authority give notice of a decision on an application for hazardous substances consent the notice shall be in writing and where hazardous substances consent is refused or is granted subject to conditions -

(a) state the reasons for that decision; and

(b) include a statement to the effect that if the applicant is aggrieved by the decision he may appeal to the Secretary of State (Scottish Ministers) under section 33 within 6 months of the date of the notice of the decision."

Regulation 12(4) then provides:

"The planning authority shall, as soon as it is practicable, inform the following persons of the terms of their decision -

(a) the Health and Safety Executive;

(b) the Regional or District Council, where the council is not the planning authority;

(c) every other consultee (as defined in regulation 11(3)) who has made representations to them on the application;

(d) every owner who has made representations to them on the application; and

(e) every person holding a notifiable interest in neighbouring land who has made representations to them on the application".

In regulation 15 there is provision for claims to be made for "deemed consents" to which reference will be subsequently made.

The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 is a circular which was issued by the then Scottish Office. Paragraph 5 of annex A is in the following terms:

"The Health and Safety Executive (HSE) will need to be consulted on every application for hazardous substances consent. They have the expertise to assess the risks arising to persons in the vicinity from the presence of a hazardous substance. But the decision as to whether those risks are tolerable in the context of existing and potential uses of neighbouring land is one which should normally be made by an elected authority. Hence, the new provisions inserted in the 1972 Act confer responsibility for determining applications for hazardous substances consent, for vetting claims for deemed consent and for enforcing the new controls, on planning authorities . . . This means that the application for hazardous substances consent will be dealt with by the same council that would deal with any associated planning application, thereby ensuring consistency in handling of linked applications".

Paragraph 25 of annex A of the same circular provides:

"Before determining an application, the planning authority must consult the Health and Safety Executive and the other bodies set out in regulation 11, and they must give those consultees not less than 28 days to comment. With regard to consultations with HSE, authorities should note the advice in paragraphs 12-20 of annex B on HSE's advisory role".

Paragraph 12 of annex B states as follows:

"HSE's role in the land use planning system is to provide planning authorities with advice on the nature and severity of the risks presented by major hazards to people in the surrounding area so that those risks can be given due weight, when balanced against other relevant planning considerations, in making planning decisions. This role is recognised by the requirements in the Procedure Order for HSE to be consulted on proposed developments in the vicinity of hazardous installations and in the 1972 Act for HSE to be consulted on every hazardous substances consent application. HSE's advice may be given either on a case-by-case basis or, for certain more straightforward proposals, through the issue of generic advice."

Paragraph 13 then goes onto state

"Because HSE's role in the land use planning system is an advisory one they have no power to direct refusal of planning permission or hsc. Where HSE advise that there are health and safety grounds for refusing, or imposing conditions on, an application, they will on request explain to the planning authority the reasons for their advice. Where that advice is material to any subsequent appeal, they are prepared to provide expert evidence at any local inquiry."

Paragraph 14 deals with the general principles on which HSE's advice to planning authorities in respect of proposed developments in the vicinity of hazardous installations should be based. Paragraph 15 then provides as follows:

"In view of HSE's acknowledged expertise in assessing the off-site risks presented by the use of hazardous substances, any advice from them that planning permission should be refused for development for, at or near to a hazardous installation, or that hazardous substances consent should be refused, should not be overridden without the most careful consideration. Accordingly, the Town and Country Planning (Notification of Applications) (Scotland) Direction 1988 at annex A of SDD circular no. 29/1988, requires a planning authority which is minded to grant planning permission against HSE's advice, to notify the Secretary of State and allow 28 days from that notice for him to decide whether to call-in the application for his own determination. Where a planning authority is minded to grant hazardous substances consent against HSE's advice, they should give HSE advance notice of that intention, and allow 21 days from that notice for HSE to give further consideration to the matter. HSE will consider during that period whether or not to request the Secretary of State to call-in the application."

Paragraph 16 is in the following terms:

"The Secretary of State will continue to exercise the power to call-in planning applications very selectively. In general, applications will only be called-in if they raise planning issues of more than local importance, including safety issues of exceptional concern or other major planning issues. Call-in of hsc applications will be similarly selective. In accordance with this policy, HSE will normally consider their role to be discharged when they are satisfied that the planning authority are acting in full understanding of the advice received and the consequences that could follow, and they will consider recommending call-in action only in cases of exceptional concern or where important policy issues are at stake".

Paragraph 24 of annex B provides as follows:

"HSE are responsible for notifying planning authorities of the relevant 'consultation zones' around hazardous sites where toxic, highly reactive, explosive or flammable substances are present. In practice, the installations and sites subject to these arrangements will include those for which hazardous substances consent has been granted or is deemed to have been granted . . .".

Paragraph 25 then states:

"HSE will keep the consultations zones under review and will inform the planning authority if changes are appropriate (paragraph 18 refers). Similarly, the planning authority should liaise with HSE if they become aware of changed circumstances which might affect the consultation zone."

Paragraph 6 of annex B states as follows:

"In considering hazardous substances consent applications or planning applications, for development at or in the vicinity of hazardous installations, authorities must have regard to the provisions of the development plan, so far as it is material to the application . . .".

"The Health and Safety Executive role in these new controls is to give advice on the nature and severity of the residual risk arising from the presence of a hazardous substance. However, the responsibility for deciding whether the risk is tolerable for the community - and hence whether a particular proposal to store or use a hazardous substance should be allowed - has been given to planning authorities."

Paragraph 6.2 of part 6 of the circular provides:

"Unless a condition is imposed limiting use of the consent to a specified person or company (which would be exceptional) the consent will normally run with the land, rather than being personal to the applicant. This means that if the land is sold in its entirety, the new owner will be able to implement the consent."

Paragraph 6.3 then continues:

"However, where there is a partial change in control of the land to which a consent relates (e.g. part of the land is sold, but not all of it) that consent is revoked unless an application for its continuation has previously been made."

Paragraph 6.12 provides:

"Where a site benefits from a hazardous substances consent, the Health and Safety Executive will set a 'consultation distance' within which the planning authority will consult HSE for advice on proposals for certain types of development."

"HSE's specific in LUP is twofold:

(i) Under the PHS Regulations, the presence of hazardous chemicals above specified threshold quantities requires consent from the Hazardous Substances Authority (HSA), which is usually also the local planning authority (PA). HSE is a statutory consultee on all hazardous substances consent applications. Its role is to consider the hazards and risks which would be presented by the hazardous substance(s) to people in the vicinity, and on the basis of this to advise the HSA whether or not consent should be granted. In advising on consent, HSE may specify conditions that should be imposed by the HSA, over and above compliance with statutory health and safety requirements, to limit risk to the public (e.g. limiting which substances can be stored on site, or requiring tanker delivery rather than on-site storage). HSAs should notify HSE of the outcome of all applications for consent and where consent has been granted should supply copies of the site plans and conditions.

(ii) HSE uses the information contained in consent applications to establish a consultation distance (CD) around the installation. This usually comprises three zones or risk contour areas - see paragraph 4. The CD is based on the maximum quantity of hazardous substance(s) that the site is entitled to have under its consent. HSE notifies the LPAs of all CDs in their areas. The General Development Procedure Order requires the LPA to consult HSE about certain proposed developments (essentially those that would result in an increase in population) within any CD. HSE advises the LPA on the nature and severity of the risks presented by the installation to people in the surrounding area so that those risks are given due weight by the LPA when making its decision. Taking account of the risk, HSE will advise against the proposed development or simply note that it does not advise against it. This advice balances the ACMH principle of stabilising and not increasing the numbers at risk, with a pragmatic awareness of the limited land available for development in the UK".

Paragraph 3 then provides:

"It is important to note that HSE's role in the land use planning system is advisory. It has no power to refuse consent or a planning application. It is the responsibility of the HSA or LPA to make the decision, weighing local needs and benefits and other planning considerations alongside HSE advice, in which case they should give HSE advance notice of that intention. LPAs may be minded to grant permission against HSE's advice. In such cases HSE will not pursue the matter further as long as the LPA understands and has considered the reasons for our advice. However HSE has the option, if it believes for example that the risks are sufficiently high, to request the decision is 'called in' for consideration by the Secretary of State, in England and Wales (a very rare situation). In Scotland, if the planning authority is minded to grant permission they have to notify the Scottish Ministers who can decide to call-in the application".

This document then goes onto describe how the consultation distances and risk contours are employed by the HSE. Reference was also made by the petitioners to EU directive 96/82/EC and the Planning (Control of Major-Accident Hazards) (Scotland) Regulations 2000 which, it was said, sought to implement the provisions of the directive. The petitioners informed the court that that legislation was designed to deal with the problem of major accident hazards arising from, inter alia, dangerous substances. They were referred to by way of background to show the emergence and development of high standards of safety that were now required to be observed in relation to such matters. The provisions, had, however, no direct bearing in relation to the present dispute.

Factual background
[11] It is a matter of agreement that the site in respect of which the consent was granted, which is subject to attack in the present proceedings, benefited until 2005 from a deemed consent in respect of a claim made for such consent in terms of regulation 15 of the 1993 regulations. The ownership in the site had subsequently changed to that of the second respondents and because of a failure to make an application timeously for a continuation of the existing consent in terms of section 15 of the 1997 Act, the existing consent was revoked by virtue of the provisions of that Act. An application for consent was made on behalf of the second respondents to the first respondents on 13 February 2006 (6/3 of process). It was subsequently withdrawn and a fresh application was made on 22 May 2006 (6/2 of process). A covering letter sent by the second respondents to the first respondents with that last application stated inter alia as follows:

"Please find enclosed an original and an additional two copies of our Express Consent application, there being a fourth copy for public consultation currently at your offices, along with a copy of the notice that appeared in the Falkirk Herald. This application covers materials which have been stored on the KemFine UK Ltd site for many years and which were included in previous consents covering the site. These consents were held under Zeneca Plc and Avecia Fine Chemicals Ltd or (sic) consent is now required due to a change in hazard classification through the Chemicals Handling Information and Packaging (CHIP) regulations.

This new Express Consent application is being submitted to resolve what KemFine UK Ltd believes is a technical issue and replaces the Express Consent application lodged with you earlier this year which we now withdraw. This application, along with the conditions which are appended, should enable a reduction in the Consultation Distance for the site from 2.75km to approximately 2.0km".

"I refer to the above application for express consent related to the storage of hazardous materials, as registered by this Authority on 22 May 2006. I also refer to previous applications and to recent correspondence and discussions related to the continuing operation of the KemFine plant.

As you are aware, consideration is presently being given by the Health and Safety Executive in respect of the relevant consultation distances which should be applied in respect of the KemFine operation. In accordance with our earlier discussions, I understand that both the Council and the company accept that this should provide opportunities to both reduce this consultation distance and provide associated benefits in terms of health and safety considerations, and also related to the potential for other development within the local area.

In order that the most appropriate solution can be achieved from this process, I would be grateful if you could confirm whether the range and quantities of hazardous substances outlined within your most recent application relate to those presently stored and required for ongoing business operations or whether these are in fact in excess of what is required and could be refined to a lower level.

I appreciate this may not be a simple request at this stage, but I would be grateful if you could give this your full consideration following/during which I would be please to meet representatives of KemFine in order to discuss matters further" (6/12 of process).

"In terms of the extant application by KemFine, this in effect reflects the earlier withdrawn application but merely corrects some potential inaccuracies related to existing consents held on this site. On this basis I assume that the consultation zones for this application are likely to reflect those amended in respect of the earlier application but clearly we await your confirmation on this matter in due course" (6/13 of process).

"We are in receipt of your letter of 22 June 2006, and can confirm that the detail in our most recent application in respect of hazardous substance consent resulted from a thorough review of our requirements to maintain our business operations and safeguard the 300 jobs at KemFine.

The review built on work undertaken by our consultant, ABB, with extensive reference to HSE, to establish measures which could be applied to maximise the reduction in the consultation distance without excessive risk to our ongoing business. This, we believe, we have achieved by a combination of naming substances, limiting container sizes and overall inventories and specifying storage areas.

ABB calculated that the application of the restrictions proposed could result in a reduction in the CD from 2.7km to 1.6km but using the same data set, HSE estimated that the resulting CD would be reduced only to 1.9km. Further work established that the difference was due to how the respective ABB and HSE models used wind and weather conditions. While HSE acknowledged that the ABB model might technically be more accurate for the bi-polar weather conditions experienced in this area, the HSE model was used throughout the UK and was considered fit for purpose.

Therefore given that it is HSE who determine the official CD, we could not reasonably expect a result of less than 1.9km. In the event, the CD resulting from our most recent application, has been confirmed by HSE to be 1.985km or thereabouts, which although slightly higher expected, may be within experimental error. Nonetheless, we have arranged a meeting with HSE later this month to review their assumptions and establish if there are any areas which can usefully be addressed further.

We will keep you advised of any developments" (6/14 of process).

"The revised proposals will also allow both a degree of reduction in the amounts of material stored within the site (as compared with the previous consents) and a clearer indication of where/how these are stored (thereby providing more relevant Consultation Zones).

As part of the on-going dialogue with the HSE the issue of Consultation Zones and their impact on potential development remains an important consideration in addition to general health and safety issues. Revised Consultation Zones had been issued in draft in respect of the now withdrawn application . . . and therefore they presently have no status. We understand that it is likely that was (sic) HSC granted in this case that a similar alteration to the zones should result. The Council remains keen to reduce these zones as far as practicable in association with KemFine and the HSE in order to both improve safety within the Grangemouth area and also to facilitate further development in the general interests of the wider Falkirk Council area.

Therefore, in conclusion, while it appears to the council that KemFine is presently operating without the required HSCs, there is little doubt that the nature of the use and the extent of storage in onsite operations are well established and represent an important part of the local 'chemical' economy. Steps have been taken to reduce the levels of hazardous materials stored within the site and discussions related to the extent of and further reductions to Consultation Zones remain ongoing for reasons already outlined" (6/8 of process).

"The Health and Safety Executive (HSE) has assessed the risks to the surrounding areas from the likely activities resulting from the granting of the proposed Hazardous Substances Consent.

Only the risk from hazardous substances for which consent is being sought have been assessed, together with the risks from substances in vehicles that are being loaded or unloaded. Risks which may arise from the presence of other substances have not been taken into account in this assessment. Generic categories of hazardous substances have been assessed by reference to exemplar substances, which have been selected to represent the worst-case substances allowed by this consent.

On the basis of this assessment, HSE have concluded that there are substantial risks to the surrounding population arising from the proposed operations. These risks are such that, if this were a new notifiable hazardous installation, HSE would advise against the granting of Hazardous Substances Consent.

The following comments are provided for clarification.

HSE notes the contents of your letter dated 20 September 2006, in particular:

·        KemFine's view that the situation has arisen largely as a result of an administrative oversight, a view which the Council does not dispute.

·        That there is little doubt that the nature and extent of storage and on-site operations are well established.

·        That the latest application by KemFine, made on the advice of the Council, is an attempt to resolve the anomaly of operating without the required consents.

·        That this application result in much smaller LUP zones than those which arose from Avercia's consent entitlement.

It is a matter for the Council to clarify the legal position of KemFine's previous applications. Taking the above factors into account may lead you to conclude that there is a net benefit in land use planning terms in granting the current application.

If Consent is granted, following Central advice that particulars in the application on Form 1 do not automatically become conditions of consent, it would be beneficial to include a condition such as:

'The Hazardous substances shall not be kept or used other than in accordance with the application particulars provided in the Hazardous Substances Consent Application Form, nor outside the areas marked for storage of the substances on the plan which formed part of the application'.

You are also asked to note the following assumptions that HSE has made in its assessment, on the advice of the applicant:

Table A of this application records 'spontaneously flammable' substances as part and entry number B4 in the 2000 Regulations and 'highly flammable' substances as B5. B4 and B5 in the Regulations refer to 'explosive' substances. HSE has assumed that the entries in Table A for: 'spontaneously flammable Part B4 should be 'highly flammable' Part B7, and 'highly flammable' Part B5 should be 'highly flammable liquids' Part B8.

On the above basis, and assuming that Consent is granted, HSE has devised a Consultation Zone for this establishment. The Consultation Zone is the outer of the three zones delineated on the attached map and constitutes a notifiable area for HSE consultation purposes. The other two zones are for use in providing land use planning advice.

If consent is granted, please send a copy of all the consent documents to this office so that our records can be updated and future land-use planning advice given on the correct basis".

"Thank you for your letter of 11 October 2006.

In terms of considering and determining the current application for Hazardous Substances Consent . . . submitted by KemFine UK Ltd, section 7(2) of the Planning (Hazardous Substances) (Scotland) Act 1997 requires that the planning authority shall have regard to any material considerations and in particular:"

The letter then set out material considerations provided for in section 7(2). The letter then continued:

"Falkirk Council's Regulatory Committee will, of course, have regard to all material considerations affecting the application before it is determined. Whilst the Council notes HSE's position that, were there to be a new notifiable hazardous installation, it would advise against the granting of consent, the fact remains that this is not a new installation but is in fact a well-established one. That is a material consideration which the Council requires to take into account, along with all other material considerations, in considering the application. I do not consider that further enquiries of HSE are necessary in light of their consultation response of 28 September 2006.

In addition to the material considerations set out in the 1997 Act, Falkirk Council will have regard to any representations received with respect to the Hazardous Substances Consent application. I have not treated your letter of 11 October 2006 as a representation . . . as you have not requested me to do so. Please indicate by return whether you wish your letter to be treated as a letter of representation to the application. It is intended that the application for consent be considered by the Regulatory Committee on 1 November 2006."

"The Health and Safety Executive (HSE) has advised that its assessment has been undertaken assuming the 'worst case substances allowed by this consent'. On the basis of this assessment, HSE has concluded that there are substantial risks to the surrounding population arising from the proposed operations and if this was a new notifiable installation it would advise against granting Hazardous Substances Consent. Through correspondence from the Council HSE is aware that

(a) while the nature of the chemical use within the site has remained largely unchanged, the Hazardous Substances Consents previously held may have been affected by changes in control of parts of the site and therefore, primarily for what appears an administrative oversight, the existing consents may in fact be revoked,

(b) that the nature and the extent of storage and on-site operations are well established,

(c) that the applicant (KemFine) is seeking to address this apparent anomaly and

(d) that approval of the application would result in Consultation Zones smaller than that associated with the former Avecia consents.

HSE conclude that, 'it is a matter for the Council to clarify the legal position of KemFine's previous applications. Taking the above factors into account this may lead you (the Council) to conclude that there is a net benefit in land use planning terms in granting the current application'. Accompanying HSE's response is a map defining the extent of the revised Consultation Zones. This reduces the outer zone from approximately 3km to 2km and also adjusts the extent of the inner and middle zones. HSE has advised on the wording of a condition to be attached to the Hazardous Substances consent, is (sic) granted. The map is appended to this report for information".

"The objector considers that KemFine does not presently have consent for its current operations and therefore in terms of Falkirk Structure Plan policy ECON 8 and adopted Local Plan policy there is a presumption against the development as it would add to the number of people at risk within the local area. Granting consent in this case would in fact add to the number of local residents who will live and work within a major hazard consultation area and therefore at risk in the event of an incident occurring. The present situation provides the opportunity to the Council to create a safer environment for Grangemouth and its residents by imposing restrictions on the site operations. Supporting the representation is a report from a specialist consultant containing a number of suggestions of how associated risk could be reduced. This includes: limiting the volume of inventories stored on site; restricting the category of material inventories; reduction in the size of individual storage vessels; and storage within buildings".

"KemFine is an established chemical site/operation of long standing. It is noted that as a result of changes in control of parts of the site and in light of administrative timescales that the status of a number of existing consents remains in question and it is likely that the company are presently operating in the absence of valid consents. In essence, when the company acquired the site in September 2005, applications for continuance of consent were submitted. However, these were submitted after acquisition and therefore the part change of control of the site. It is likely that continuance applications were not required for all of the extant consents, however, it is likely main consent . . . was affected and therefore revoked by operation of statute. While this did not change the nature of the operation on site it is likely that it left KemFine without Hazardous Substances Consent for the fundamental part of its business."

"As previously indicated, Falkirk Council has, in conjunction with site operators, sought to address the nature/extent of materials being stored within chemical sites in Grangemouth in order to improve safety and also to allow other beneficial development to take place within the Falkirk/Grangemouth area. Against this background there is a realisation of the importance of the chemical industry to the local, regional and Scottish economy which requires to be balanced with the welfare of residents in the local area. In KemFine's case, an assessment of inventories/storage arrangements etc bearing in mind the continued operational requirements of the company, has occurred (similar to the process considered appropriate by the objector's consultant) with the current proposal arising from this. This has resulted in positive feedback from the Health and Safety Executive including a reduction in the Consultation Zones".

"Therefore, while there are issues related to the consent regime for the existing operation it is clear that the nature of the use has not changed to any material extent. Granting consent would reduce the former Consultation Zones and therefore improve assumed safety issues within the local area. The consent would therefore sustain the present use of the long established site in an appropriate manner."

"proposals for new petrochemicals and chemicals development will be supported within Grangemouth . . . subject to environmental and health and safety considerations and provided that they are compatible with the regeneration of Grangemouth Docks, Town Centre or Bo'ness Town Centre".

"The proposal would support the established chemical industry in Grangemouth to the extent that it would maintain the status quo while allowing the business (KemFine) to adapt to commercial changes in the future. This would be done in a manner designed to reduce risk to the surrounding area as compared with previous consents and recognises that despite the absence of extant consent for the substantive KemFine operation, the use is an established part of the fabric of the area. In essence, it is considered that its wider impact would be less than that related to the previous consents and on this basis and in light of the general support for the chemical industry, the safety and associated concerns would be within acceptable levels. This position is consistent with that of the Health and Safety Executive. Accordingly, it is considered that the proposal would accord with Policy ECON 8 of the Falkirk Council Structure Plan".

"The formal advice of the HSE is outlined within paragraph 3.3 above and does not support a refusal of consent on safety grounds in this case. It is accepted that the circumstances surrounding this application are distinct but the installation has been in operation for many years and the nature of the operation as now proposed would clearly be beneficial when compared with previous consents".

"The existing use of the KemFine site is both longstanding and fully established. Against this background it is likely that the company are presently operating in the absence of all of the necessary consents required and that this application is the appropriate means to consider/address this matter. Consideration has been given by the company related to the nature/extent of its operation and to the means by which it can limit potential impact on the surrounding area. This is to some degree evidenced by the reduction in the Consultation Zones which would follow approval in this case".

"Accordingly, it is considered that the extent of the operation now proposed is both proportionate and acceptable in the particular circumstances and that approval of consent would accord with the requirements of section 7(2) of the Planning (Hazardous Substances) (Scotland) Act 1997 as outlined by the assessment above."

That recommendation was accepted by the first respondents' committee and the consent to which the present proceedings relate was granted.

The Petitioners' case

"As a statutory consultee, HSE's role is to advise the Council on the potential safety risks arising from the consent application presented to us. HSE's advice to Falkirk Council on KemFine's most recent application concluded that there would be substantial risks to the surrounding population if the application were granted, and illustrated this by provision of a map showing the extent of the risk zones around the site. HSE considers that its advice to Falkirk Council was clearly stated but that it is for the Council to decide as to whether these risks are tolerable in the context of existing and potential uses of neighbouring land.

I would refer you to The Scottish Executive Environmental Department Circular 5/93 Planning Controls for Hazardous Substances, The Town and Country Planning (Hazardous Substances) Regulations 1993. This document makes it clear that HSE has an advisory role only and have no power to direct refusal. It also advises councils that they should not override HSE advice without most careful consideration. Granting of hazardous substances consent is entirely a matter for Falkirk Council taking into account all representations made on the application before them.

HSE also considers that it is for the Council to decide whether additional conditions should be imposed on the granting of the application. HSE is not a consultant, either to the Council or the applicant, and is unable to assess the range of options that may be considered as ways to reduce the extent of HSE's proposed consultation zone (CZ). However, by considering the assessment carried out to determine this CZ, HSE is able to identify possible options to reduce the extent of the CZ and would be willing to outline these options for the Council and the applicant. HSE has recently made such an offer to the Council and awaits the Council's response. This process has been carried out with respect to previous consultations amending hazardous substances consent in order to reduce the overall consultation zone from 2.75km to the current CZ".

I was invited to take from this letter that, had the first respondents gone back to HSE, after receiving the advice contained in 6/5 of process, and before granting the application, it might have been possible that through further discussion and the obtaining of advice from HSE, the consultation zones could have been further reduced. The petitioners did accept that, as a result of the discussions among the first and second respondents, and the HSE, the zones had been reduced from what had obtained under the terms of previous consents applying to the site but it was said that the changes were slight.

"The presence of modern hazardous industry in close proximity to modern houses, shops and schools indicates that, at least for the foreseeable future industry and housing will have to co-exist in Grangemouth. This should not be taken to mean that the existing situation is entirely satisfactory nor that there is no scope for some improvement in the longer term future. The strategy should recognise the facts of the existing situation but not entirely rule out longer term incremental improvements" (6/27 of process).

"5.30 The chemical companies in Grangemouth are of major economic importance in both a Scottish and local context. The opportunity to build on their presence in the town, particularly with the local downstream manufacture of their primary products is a key goal of both the economic development strategies of Scottish Enterprise Forth Valley and the Council.

5.31 However, as mentioned above, the chemical companies also create a local constraint. Significant areas of Falkirk Council area are therefore already constrained in terms of possible development options. To increase offsite restrictions still further would not be acceptable. There will therefore be a presumption against any proposal that will extend the size and extent of hazard consultation zones within urban areas beyond their present coverage or prejudice the development of sites allocated in the Local Plan.

5.32 In addition, Falkirk Council will seek to work with the chemical companies to continue to improve their safety and environmental performance. Wherever possible the Council will seek to negotiate reductions in the inventories of hazard substances held by chemical companies in order to reduce the offsite development constraints in the Falkirk Council area. Falkirk Council will produce its own guidance setting out how it will determine applications for Hazardous Substances Consent".

The statements contained in those policies, it was submitted, reiterated further the need for further consultation and negotiation with the second respondents by the first respondents before the consent was granted.

"The situation may arise where, before commencement of the new consent requirements, planning permission has been granted for a development implicitly involving the storage or use of hazardous substances. After consideration by HSE and the planning authority of the off-site risks; where a contract has been let or development commenced, on that basis; but where deemed hazardous substances consent is not available as the substances concerned have not been present during the establishment period. In this situation, which may have led to considerable investment in a site, planning authorities would be expected to give sympathetic consideration to any application for hazardous substances consent subsequently made which is in line with the terms of the planning application and permission. Consent should not normally be withheld unless there are compelling reasons for such a decision, involving a significant change in the material circumstances".

Junior counsel for the second respondents accepted that the decision whether or not to grant to grant a hazardous substances consent was, in essence, a planning decision. In that connection the approach to be taken by the decision maker was as discussed in the City of Edinburgh Council v Secretary of State 1998 SC (HL) 32 where the issue was the role of development plans, having regard to the provisions of section 18A of the Town and Country Planning (Scotland) Act 1972. While the House of Lords accepted that the statutory provisions meant that the development plan was presumed to govern planning decisions, unless there were material considerations which indicated that in the particular case the provisions of the plan should not be followed, nevertheless, the matter was always one of judgment and a judgment to be exercised by the decision maker. As Lord Clyde at page 44C to D put matters

". . . it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision maker. It is for him to assess the relative weight to be given to all the material considerations".

In the present case, it was submitted, it was entirely within the legitimate exercise of the discretion of the first respondents, as the decision maker, to decide whether or not to revert to HSE further, after receiving their letter 6/9 of process or to proceed simply to consider the application and to grant it. For the petitioners to succeed in the present case, it would be necessary, it was submitted, for them to persuade the court that no reasonable authority would have issued the consent without going back to HSE for further advice, in particular as to whether the Consultation Zones might be reduced.

Petitioner's Response
[50] In reply the Dean of Faculty for the petitioners indicated that while the additional history of matters referred to by junior counsel for the second respondents might not necessarily be disputed by the petitioners, the petitioners' case was that it was irrelevant. What was relevant was what was placed before the first respondents committee when they were considering their decision. If the court were minded to go into the additional history, beyond the documents lodged prior to the commencement of the hearing and the averments of the petitioners, a second hearing might be required and then questions of expenses might arise.

1. The first respondents must have properly understood the legal basis for their decision for it to be valid.

2. They must have fulfilled their statutory duties to obtain and take into account advice from HSE.

3. The first respondents must have understood that advice and applied it properly in the decision that they were taking.

4. The first respondents must have acted in accordance with the relevant policies in applying that advice.

5. They must have properly taken into account other material which was relevant to their decision, particularly provisions of the development plan.

6. Finally, the first respondents must have reached a decision which was not unreasonable "in the legal sense".

"Because HSE's role in the land use planning system is an advisory one, they have no power to direct refusal of planning permission or hsc. Where HSE advise that there are health and safety grounds for refusing, or imposing conditions on, an application, they will on request explain to the planning authority the reasons for their advice. Where that advice is material to any subsequent appeal, they are prepared to provide expert advice at any local inquiry".

The first respondents should, it was submitted, have required further explanation of HSE's reasons for their advice. Paragraph 15 of annex B of the circular should also have been followed and the first respondents should have given advance notice of their intention that they were minded to grant Hazardous Substances Consent against HSE's advice and to advise HSE that they had 21 days to give further consideration to the matter. That procedure had not been followed in the present case.

"consideration has been given by the company relating to the nature/extent of its operation and to the means by which it can limit potential impact on the surrounding areas. This is, to some degree, evidenced by the reduction in the Consultation Zones which would follow approval in this case".

What was being pointed out, it was submitted, was that HSE had been involved in bringing about a reduction of the Consultation Zones. The history of the matter as demonstrated by the petitioners' own productions and the HSE advice to them, that did not say that further work could be carried out or needed to be carried out to reduce the Consultation Zones, entitled the first respondents to assume that there was no room for reducing the zones further, otherwise HSE would have said so. The members of the first respondents' committee knew from the petitioners' objection that the petitioners' position was that the inventories could be reduced. There was no requirement, in that set of circumstances, for the first respondents to go back to HSE before taking their decision.

Decision
[64] As I have noted the petitioners' position in this case throughout was not that the consent should not have been granted. Their position was that it ought not to have been granted until the first respondents had discussed further with HSE, the petitioners and second respondents the possibility of further measures being taken by the second respondents at the site which might have reduced the Consultation Zones further. They were, of course, unable to demonstrate that had any such further discussion taken place that would have resulted in agreement by the second respondents about reductions in their inventories, or that any such reductions would have allowed them to carry out their existing operations in a commercially acceptable fashion. But, in any event, matters have to be tested at the time when the first respondents arrived at their decision to grant consent. The fact that the site had operated, as an important part of the petrochemical industry situated in the first respondents' area, for some years, under previous consents, was, in my judgment, clearly a highly relevant consideration in deciding whether or not to grant consent. HSE, themselves, in my judgment, in the formulation of their advice in 6/9 of process recognised this. This was not a new installation. Different considerations might have applied in relation to a new installation but the application in the present case applied to a successfully established operation for which there was planning permission and which had played a part in the economic life of the area for some considerable time and in respect of which there had been previous consents. Notwithstanding these important features of the situation with which the first respondents were dealing, I agree with the submissions made on behalf of the first respondents, that, having regard to the correspondence passing among the parties, and lodged by the petitioners themselves, it is abundantly clear that, contrary to what was submitted on behalf of the petitioners, prior to granting consent in this case, the opportunity had been taken by the first respondents to seek to have the Consultation Zones reduced and that this attempt bore some fruit.