Planning Circular 3/2015: Planning controls for hazardous substances

Annex G - Enforcement

Introduction

G1. Sections 21 to 25 of the Principal Act and Part 7 of the 2015 Regulations deal with enforcement in relation to hazardous substances consent.

G2. The circumstances in which there is a contravention of hazardous substances control are specified in section 21(2), namely:

• the absence of a necessary hazardous substances consent;
• substances present above the maximum quantity permitted by hazardous substances consent; or
• failure to comply with a condition attached to hazardous substances consent.

Offences

G3. Section 21(1) provides that if there is a contravention of hazardous substances control the appropriate person is guilty of an offence. The rest of the section: specifies when there is a contravention of control; defines "appropriate person"; specifies penalties; and provides for appropriate defences.

G4. Where a hazardous substance is present at or above the controlled quantity without consent, or where the quantity of the substance present exceeds the maximum permitted by a consent, the occupier of the land or any person who knowingly causes, or who allows, the substance to be present is guilty of an offence. Where there is a failure to comply with a condition attached to a consent, the occupier of the land is guilty of an offence. It should be noted that where the person committing an offence is a body corporate, section 273 of the Planning Act (as applied by section 36 of the Principal Act) provides that a director, manager, secretary or other similar officer of that body whose consent, connivance or negligence contributed to the commission of the offence is, as well as the body corporate, guilty of the offence and may also be prosecuted.

G5. The maximum penalty on summary conviction for an offence under section 21 of the Principal Act is £20,000, and the penalty on conviction on indictment is an unlimited fine. Subsections (6), (7) and (8) of section 21 provide statutory defences in the event of any proceedings under that section.

G6. It is also an offence not to comply with a hazardous substances contravention notice (see paragraph G10)

Methods of Enforcement

G7. There are a number of ways of dealing with a contravention of hazardous substances control in the Principal Act. Under section 21, a contravention of hazardous substances control is an offence. Section 22 provides for the issue of a hazardous substances contravention notice specifying the steps to be taken to rectify a contravention of control. Furthermore, section 25 enables the planning authority to apply for an interdict in respect of an actual or expected contravention of control.

G8. Where a planning authority has identified a breach of control it should, before issuing a hazardous substances contravention notice, consider first of all whether it is expedient to do so, having regard to any material consideration. For more serious breaches of control, the planning authority may consider seeking prosecution or interdict. Or there may be instances - for example, where a breach of control has been unintentional - where the planning authority may be able to secure early remedial action without recourse to statutory action (if need be, by drawing the offender's attention to the powers available to them). Since the controlled quantities of hazardous substances have been set at amounts at or above which it is considered that major hazards could arise to persons in the surrounding area, or to the surrounding environment itself, authorities should be mindful of the serious risks that may arise if prompt and effective action is not taken.

Hazardous Substances Contravention Notices - General

G9. Section 22 of the Principal Act, as amended, gives planning authorities the power to issue a hazardous substances contravention notice where there has been a contravention of control, specifying the alleged contravention and requiring such steps as may be specified in the notice to be taken to remedy wholly or partly the contravention (except where it appears that the contravention could be avoided only by the taking of action which amounts to a breach of a statutory duty - see section 22(3)).

G10. An offence is committed if a contravention notice is not complied with (regulation 50). The contravention notice cannot take effect until at least 28 days after the date on which the notice is served. There may be delays, though, before a notice comes into effect because the procedure includes a right of appeal to Scottish Ministers against the notice on specified grounds. As the unauthorised presence of a hazardous substance could have serious and immediate consequences, the offence provided by section 21 of the Principal Act enables the planning authority to refer a case to the Procurator Fiscal to determine whether to initiate a criminal prosecution.

G11. The provisions of section 22 of the Principal Act are similar to those in sections 127 and 128 of the Planning Act on planning enforcement notices. The provisions applying to appeals against hazardous substances contravention notices and determination of such appeals are also similar to those for planning enforcement notice appeals^[13].

G12. The 2015 Regulations (regulations 47 to 52) apply the provisions of sections 130 to 138 (with the exception of section 136A) and (regulation 53) 147, of the Planning Act with appropriate modifications.

Enforcement - Liaison with HSE, ONR and SEPA

G13. Enforcement of hazardous substances consent controls is the responsibility of planning authorities. They should liaise with HSE or ONR as appropriate where:

• hazardous substances appear to be present in contravention of the controls in circumstances that give rise to health and safety concerns, where HSE or ONR may wish to consider whether enforcement action is also appropriate under the Health and Safety at Work etc. Act 1974;
• it is necessary to establish that the requirements of a hazardous substances contravention notice would not conflict with the requirements of health and safety legislation; or
• the action to be taken may be influenced by HSE or ONR's advice on the residual risk (see paragraph B2).

G14. The planning authority should also liaise with SEPA on hazardous substances enforcement issues for their environmental interests, including any related breaches of controls administered by SEPA.

G15. In any event, where a hazardous substances contravention notice is issued, authorities are requested to send a copy of the notice to the HSE Area Office, SEPA Area Office or ONR for information - See Annex M.

Issue and Service of Hazardous Substances Contravention Notice

G16. By virtue of section 22 of the Principal Act and regulation 42, a hazardous substances contravention notice must:

• identify the land to which it relates, whether by reference to a plan or otherwise;
• specify the alleged contravention of hazardous substances control;
• specify the steps required by the authority to be taken to remedy, wholly or partly, the contravention of control (which may include the removal of a substance from the land);
• specify the date on which it is to take effect, which must be not less than 28 days from the date of service of copies of the notice; and specify a further period within which each required remedial step is to be taken.

G17. Service of the notice must be accompanied by a statement setting out the planning authority's reasons for issuing the notice, and giving information about the right of appeal to Scottish Ministers.

G18. Section 22 and regulation 42 provide that a copy of a hazardous substances contravention notice must be served on the following persons:

• the owner, lessee and occupier of the land to which it relates;
• all persons having an interest in the land who, in the planning authority's opinion, are materially affected by the notice.

G19. Under section 22(8), the planning authority may withdraw a notice at any time before or after it takes effect. Where it does so, it should immediately notify the withdrawal to every person who was served with a copy of the notice, or who would be so served if the notice were re-issued.

Appeals Against Hazardous Substances Contravention Notices

G20. A person on whom a hazardous substances contravention notice is served or any other person having an interest in the land to which the notice relates may appeal to Scottish Ministers against the notice. Regulations 43 to 47 deal with appeals. See Annex M for link to downloadable appeal form.

G21. The appeal must be made before the notice takes effect, and may be made on any of the grounds set out at regulation 43(1)(a).

G22. Regulation 43 covers the making of an appeal, the content of the notice of appeal and the documents required to accompany that notice, the limitations on introducing new matters and the application of the appeal procedures in Part 5 of the 2015 Regulations to such appeals.

G23. Regulation 44 sets out the requirements on the appellant to inform the planning authority, the requirements governing the planning authority's response and the ability of the appellant to then comment on the planning authority's response. It also contains requirements on the planning authority to make information on the appeal available for public inspection.

G24. The planning authority must, under regulation 45, give notice of the appeal to the other parties on whom the contravention notice was served.

G25. Regulation 46 describes what decisions Scottish Ministers may make on the appeal, including correcting or varying the contravention notice, dismissing the appeal or allowing the appeal and quashing the notice.

Key Points: Enforcement of Hazardous Substances Control

• It is an offence not to have the necessary hazardous substances consent or to breach the maximum quantities specified in or conditions attached to such consent.
• It is also an offence not to comply with a hazardous substances contravention notice.
• Planning authorities can choose to pursue a number of enforcement measures depending on circumstances: contravention notices, interdicts or prosecution.
• The recipient of a contravention notice has a right of appeal to the Scottish Ministers.