Citation, commencement, interpretation and extent

1.–(1) These Regulations may be cited as the Planning (Control of Major-Accident Hazards) (Scotland) Regulations 2009 and come into force on 23rd November 2009.

(2) In these Regulations "the Hazardous Substances Regulations" means the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993(3).

(3) These Regulations extend to Scotland only.

Amendment of the Town and Country Planning (Development Planning) (Scotland) Regulations 2008

2.–(1) The Town and Country Planning (Development Planning) (Scotland) Regulations 2008(4) are amended in accordance with paragraphs (2) to (4).

(2) In regulation 1(2) (citation, commencement and interpretation) in the definition of "Directive", after "Council", insert "as amended by Council Directive 2003/105/EC(5),".

(3) For regulation 3(2)(b) (information and considerations) substitute–

"(b) the need in the long term to maintain appropriate distances between establishments covered by the Directive and residential areas, buildings and areas of public use, major transport routes as far as possible, recreational areas and areas of particular natural sensitivity or interest; and".

(4) For regulation 10(2)(b) (information and considerations) substitute–

"(b) the need in the long term to maintain appropriate distances between establishments covered by the Directive and residential areas, buildings and areas of public use, major transport routes as far as possible, recreational areas and areas of particular natural sensitivity or interest; and".

Amendment to the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993

3.–(1) The Hazardous Substances Regulations are amended in accordance with paragraphs (2) to (4).

(2) In regulation 2(1) (interpretation), in the definition of "the Directive" after "Council Directive 96/82/EC", insert "as amended by Council Directive 2003/105/EC".

(3) In regulation 4(6) for "6, 14, 35 and 39" substitute "10, 18, 39 and 43".

(4) For Schedule 1 (hazardous substances and controlled quantities) substitute the new Schedule 1 as set out in the Schedule to these Regulations.

(5) In Schedule 2 (prescribed forms, notices and certificates) in Note (a) to forms 1 (application for hazardous substances consent), 2 (application for hazardous substances consent without a condition imposed on a previous consent and continuation of hazardous substances consent following a change of control of part of the land) and 12 (claim for deemed consent), at the end insert "and the Planning (Control of Major-Accident Hazards) (Scotland) Regulations 2009(6)".

Transitional provision: existing consents

4. Where amendments made to the Hazardous Substances Regulations by virtue of regulation 3(4) result in a substance, mixture or preparation being renamed or re-categorised then such amendments shall not affect the validity of any hazardous substances consent granted in respect of such substance, mixture or preparation before the date on which these Regulations come into force.

Transitional exemptions

5.–(1) No offence is committed under section 21 of the Planning (Hazardous Substances) (Scotland) Act 1997 before 23rd May 2010 and no hazardous substances contravention notice may be issued before that date in relation to a hazardous substance which is on, over or under any land, if–

(a) the substance was present on, over or under land at any time within the period of 12 months ending on 23rd November 2009 and was not a substance or quantity of substance for which hazardous consent was required before that date; and

(b) the substance is not present during the period beginning on 23rd November 2009 and ending on 22nd May 2010 in a quantity greater in aggregate than the established quantity.

(2) In paragraph (1) "the established quantity", in relation to any land, means the maximum quantity which was present on, over or under the land at any one time within the period of 12 months ending on 23rd November 2009.

Regulation 3(4)

SCHEDULE

Regulations 2(6) and 3

"SCHEDULE 1 HAZARDOUS SUBSTANCES AND CONTROLLED QUANTITIES

PART A NAMED SUBSTANCES

NOTES TO PART A

PART B CATEGORIES OF SUBSTANCES AND PREPARATIONS NOT SPECIFICALLY NAMED IN PART A

NOTES TO PART B

1. Substances and preparations shall be classified for the purposes of this Schedule according to regulation 4 of the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009(15) ("CHIP") whether or not the substance or preparation is required to be classified for the purpose of those Regulations or, in the case of a pesticide approved under the Food and Environment Protection Act 1985(16) in accordance with the classification assigned to it by that approval.

2. An "explosive" means:

(i) a substance or preparation which creates the risk of an explosion by shock, friction, fire or other sources of ignition (risk phrase R2);

(ii) a substance or preparation which creates extreme risks of explosion by shock, friction, fire or other sources of ignition (risk phrase R3); or

(iii) a substance, preparation or article covered by Class 1 of the European Agreement concerning the International Carriage of Dangerous Goods by Road (UN/ADR), concluded on 30 September 1957, as amended, as transposed by Council Directive 94/55/EC of 21st November 1994 on the approximation of the laws of the Member States with regard to the transport of dangerous goods by road(17).

Included in this definition are pyrotechnics, which for the purposes of these Regulations are defined as substances (or mixtures of substances) designated to produce heat, light, sound, gas or smoke or a combination of such effects through self-sustained exothermic chemical reactions.

Where a substance or preparation is classified by both UN/ADR and risk phrase R2 or R3, the UN/ADR classification shall take precedence over assignment of risk phrases.

Substances and articles of Class 1 are classified in any of the divisions 1.1 to 1.6 in accordance with the UN/ADR classification scheme. The divisions concerned are:

(a) Division 1.1: Substances and articles which have a mass explosion hazard (a mass explosion is an explosion which affects almost the entire load virtually instantaneously).

(b) Division 1.2: Substances and articles which have a projection hazard but not a mass explosion hazard.

(c) Division 1.3: Substances and articles which have a fire hazard and either a minor blast hazard or a minor projection hazard or both, but not a mass explosion hazard:

(i) combustion of which gives rise to considerable radiant heat; or

(ii) which burn one after another, producing minor blast or projection effects or both.

(d) Division 1.4: Substances and articles which present only a slight risk in the event of ignition or initiation during carriage. The effects are largely confined to the package and no projection of fragments of appreciable size or range is to be expected. An external fire shall not cause virtually instantaneous explosion of virtually the entire contents of the package.

(e) Division 1.5: Very insensitive substances having a mass explosion hazard which are so insensitive that there is very little probability of initiation or of transition from burning to detonation under normal conditions of carriage. As a minimum requirement they shall not explode in the external fire test.

(f) Division 1.6: Extremely insensitive articles which do not have a mass explosion hazard. The articles contain only extremely insensitive detonating substances and demonstrate a negligible probability of accidental initiation or propagation. The risk is limited to the explosion of a single article.

Included in this definition are also explosive or pyrotechnic substances or preparations contained in articles. In the case of articles containing explosive or pyrotechnic substances or preparations, if the quantity of the substance or preparation contained is known, that quantity shall be considered for the purposes of these Regulations. If the quantity is not known, then, for the purposes of these Regulations, the whole article shall be treated as explosive.

3. In categories 6, 7, 8 and 9, -˜flammable´, -˜highly flammable´, and -˜extremely flammable´ mean:

(a) flammable liquids means substances and preparations having a flash point equal to or greater than 21°C and less than or equal to 55°C (risk phrase R 10), supporting combustion;

(b) highly flammable liquids means–

(i) substances and preparations which may become hot and finally catch fire in contact with air at ambient temperature without any input of energy (risk phrase R 17);

(ii) substances and preparations which have a flash point lower than 55°C and which remain liquid under pressure, where particular processing conditions, such as high pressure or high temperature, may create major-accident hazards; and

(iii) substances and preparations having a flash point lower than 21°C and which are not extremely flammable (risk phrase R 11, second indent);

(c) extremely flammable gases and liquids means–

(i) liquid substances and preparations which have a flash point lower than 0°C and the boiling point (or, in the case of a boiling range, the initial boiling point) of which at normal pressure is less than or equal to 35°C (risk phrase R 12, first indent);

(ii) gases which are flammable in contact with air at ambient temperature and pressure (risk phrase R12, second indent), which are in a gaseous or supercritical state; and

(iii) flammable and highly flammable liquid substances and preparations maintained at a temperature above their boiling point.

NOTES TO PARTS A AND B

1. Mixtures and preparations shall be treated in the same way as pure substances provided they remain within the concentration limits set according to their properties under the relevant provisions specified in CHIP, unless a percentage composition or other description is specifically given.

2. In the case of substances and preparations with properties giving rise to more than one classification the lowest thresholds shall apply.

3. Where a substance or group of substances listed in Part A also falls within a category of Part B, the controlled quantities set out in Part A must be used.

4. In the case of an establishment where no individual substance or preparation is present in a quantity above or equal to the relevant controlled quantity for that substance or preparation, the addition of hazardous substances to determine the controlled quantity shall be carried out according to the following rule:

If the sum–

(where qx = the quantity of hazardous substance x (or category of substance) present, Q = the relevant controlled quantity (Q) from Part A or Part B, except for those substances for which column 3 of Part A contains a quantity Q*, in which case the quantity Q* shall be used in place of the controlled quantity Q in column 2)

then the controlled quantity of each of the substances which are added together in accordance with each of paragraphs 5(a) to (c) below shall be deemed to be present for the purposes of sections 2(2), 12(2)(c) and 21(2)(a) of the Planning (Hazardous Substances) (Scotland) Act 1997(18) and of section 138 (enforcement notice to have effect against subsequent development) of the Town and Country Planning (Scotland) Act 1997(19) as substituted by paragraph 4 of Schedule 4.

5. The addition rule in paragraph 4 will apply for the following circumstances:–

(a) for the addition of substances and preparations named in Part A and classified as toxic or very toxic, together with substances and preparations falling into categories 1 or 2 of Part B;

(b) for the addition of substances and preparations named in Part A and classified as oxidising, explosive, flammable, highly flammable, or extremely flammable, together with substances and preparations falling into categories 3, 4, 5, 6, 7, 8 or 9 of Part B;

(c) for the addition of substances and preparations named in Part A and classified as dangerous for the environment (R50 (including R50/53) or R51/53), together with substances and preparations falling into categories 10(i) or 10(ii) of Part B.

PART C SUBSTANCES USED IN AN INDUSTRIAL CHEMICAL PROCESS

NOTES TO PART C

1. The expression "which it is believed may be generated during loss of control of an industrial chemical process" has the same meaning as in the Directive.

2. Where a substance falling within Part A or B also falls within Part C, the classification with the lowest controlled quantity shall apply, subject to note 3 to the notes to Parts A and B."

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement, in relation to town and country planning in Scotland, Article 12 of Council Directive 96/82/EC on the control of major accident hazards involving dangerous substances (O.J. No. L 10, 14.1.1997, p.13) (the Seveso II Directive), as amended by Council Directive 2003/105/EC (O.J. No. L 345, 31.12.2003, p.97) (the 2003 Directive).

Article 12 of the Seveso II Directive requires that the objectives of preventing major accidents and limiting the consequences of such accidents are taken into account in land-‘use policies; and that these objectives are achieved through controls and the requirement to ensure that planning authorities set up appropriate consultation procedures to facilitate the implementation of these and other policies established under the Article. It also requires Member States to take account of the need, in the long term, to maintain appropriate distances between establishments covered by the Directive and residential areas, areas of public use, and areas of natural sensitivity or interest. The 2003 Directive extends this requirement to include buildings in public use, major transport routes as far as possible, and recreational areas.

Regulation 2 amends the Town and Country Planning (Development Planning) (Scotland) Regulations 2008 (S.S.I. 2008/426) so that strategic development planning authorities and planning authorities are to have regard to this extended requirement when preparing a strategic development plan, main issues report or local development plan as appropriate.

The amendments made by the 2003 Directive also extend the scope of the Seveso II Directive by amending Annex I to the Seveso II Directive (application of the Seveso II Directive). Annex I applies to the presence of dangerous substances (including mixtures and preparations) at any establishment. In so doing, Annex I determines the application of Article 12. The new Annex I increases the range of dangerous substances, and revises the definitions and qualifying quantities of dangerous substances that were listed in Annex I of the Seveso II Directive. Among those dangerous substances now included by virtue of the amendments made by the 2003 Directive are those associated with risks arising from certain storage and processing activities in mining.

Regulation 3 amends the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 (S.I. 1993/323) by substituting a new Schedule 1 prescribing the substances which are hazardous substances and their controlled quantities, in order to implement the amendments made to Annex I of the Seveso II Directive by the 2003 Directive. Regulation 3 also makes some minor amendments to reflect the substitution of the new Schedule 1.

Regulation 4 makes transitional provision to ensure that existing hazardous substances consents are not treated as invalid because hazardous substances have now been renamed or re-‘categorised.

Regulation 5 confers transitional immunity from prosecution and contravention proceedings for a period of 6 months from the day these Regulations came into force. During this time an application for consent may be made.

A Regulatory Impact Assessment has been prepared in relation to these Regulations. It has been placed in the Scottish Parliament Information Centre and copies may be obtained from Scottish Government Planning Directorate, Area 2-‘H, Victoria Quay, Edinburgh, EH6 6QQ.