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Advice to BLP Law

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Enquiry

From
BLP Law
Date advice given
6 July 2011
Enquiry type
Email

Request for clarification on how to make a deemed hazardous substances consent application through the Planning Act 2008 process.

Advice given

As you may be aware, Section 43 (2) of Schedule 2 of Planning Act 2008 amends the Planning (Hazardous Substances) Act 1990 to enable the person making a development consent order to, on making that order, direct that hazardous substances consent shall be deemed to be granted (subject to any conditions that may be specified). It is noted that Annex B of CLG guidance to Local Authorities states that "when a DCO is made, a direction can be given deeming the grant of hazardous substances consent. This would be separate from the DCO itself".

Although there is no Government guidance relating to the procedure for deeming hazardous substances consent, I would encourage you to seek the views of the Health and Safety Executive (see draft NPSs EN1 and EN4) who must be consulted by the decision-maker before making the DCO and deeming hazardous substances consent. You may also find it helpful to seek the views of the relevant authority who would normally be the Hazardous Substances Authority (if you were not seeking to deem consent), and any bodies that it would normally consult under the Planning (Hazardous Substance) Regulations. You may also wish to contact any other parties who may have an interest in this particular matter. You may wish to focus discussions on the conditions which ought to be applied to any deemed hazardous substances consent.

It would also be helpful to request from the relevant Hazardous Substances Authority information about the way in which other land in the vicinity of the application site is being used and any relevant planning permissions granted for development in the vicinity because these are matters to which the decision maker must have regard when deciding an application for a DCO involving the presence of a hazardous substance. This information could be provided when submitting the DCO application to the IPC.