Dear Hyndburn Council: Are you joking or taking the complete P*SS?


Question:

REPORT TO PLANNING COMMITTEE – 7 January 2009

REPORT BY: CHIEF PLANNING AND TRANSPORTATION OFFICER

PREPARED BY: JEAN WILLIAMS

REVOCATION OF HAZARDOUS SUBSTANCES CONSENT AT THE FORMER CLARIANT
CHEMCIAL WORKS, NOOK LANE, OSWALDTWISTLE

Purpose of Report

To obtain approval from Members for the making of an Order under S14(2) of the Planning
(Hazardous Substances) Act 1990 to revoke the Hazardous Substances Consent (HSC) at
the former Clariant Chemical Works, Nook Lane, Oswaldtwistle, subject to confirmation by the
Secretary of State.

RECOMMENDED that:

Members authorise the revocation of the Hazardous Substances Consent No PR/03/0007, as
set out in Paragraph 3 below subject to confirmation being received from the site owners that
they would make no claim for compensation for the loss of the Hazardous Substances
Consent.

1

Background

1.1
The Hazardous Substances Consent (HSC), which is in force on this site (Application
No. PR/03/0007), allows for the storage of 50 tonnes of Para chologophenyl isocyanate,
154.6 tonnes of Benzl chloride, 685 tonnes Benzoisothiazoline and 166 tonnes of
Perchloroethylene,. Due to the existence of the HSC the site is a Notification Site under the
Control of Major Accident Hazards (COMAH) Regulations 1999. The oval shaped
Consultation Zone relating to this Notification extends 800 metres to the north, 493 metres to
the east, 373 metres to the south and 338 metres to the west from the centre of the site. The
Health and Safety Executive wrote to the Council in June 2007 to advise that the site was no
longer in operation and that Hyndburn Borough Council in its capacity of Hazardous
Substances Authority (HSA) should consider revoking the consent.

1.2
At recent meetings between Senior Officers of the Council and consultants, acting on
behalf of the site owner, proposals for the future use of the site and adjoining land have been
discussed. At present any planning application submitted within the consultation zone is
subject to the COMAH Regulations administered by the Health and Safety Executive and it is
almost certain that the HSE would “Advise Against” any development on the site and likewise
advise against many other developments within the consultation zone. Until the Hazardous
Substance Consent is revoked it will be difficult to deal with the site, whatever is proposed.

2

Revocation of the Hazardous Substances Consent

2.1
The Planning (Hazardous Substances) Act 1990 allows for HSC to be revoked under
s.14. This Authority, as Hazardous Substance Authority, can make a revocation order under
s.14 (1) or (2) of the Act. The revocation will be subject to confirmation by the Secretary of
State under s.15 of the Act (even it is unopposed). S16 (1) of the Act makes it clear that
compensation, which would otherwise be payable for a revocation or modification using
powers under s.14 (1), is not payable for a revocation if it is made under s14 (2) of the Act.

2.2

The grounds under which revocation can be made are set out in s14(2) as being:

a) that there has been a material change in the use of the land to which the HSC relates; or
b) planning permission has been granted and commenced for development of the site and
would involve making a material change in the use of the land; or
c) in the case of a HSC which relates only to one substance, that the substance has not for
at least five years been present on, over or under the land to which the consent relates in a
quantity equal to or exceeding the controlled quantity; or
d) in the case of a HSC which relates to a number of substances, that none of those
substances has for at least five years been so present.

2.3
The site has been cleared of most of the former buildings and associated
paraphernalia with just 5 former buildings remaining. It is my view that there has been a
material change of use of the site from a sui generis to a nil use. The few remaining buildings
left on the site were ancillary buildings to the principle use as a chemical works. As that
primary use has ceased with the removal of the majority of the buildings then the remaining
buildings do not benefit from any use. This opinion has been confirmed by the Head of Legal
and Democratic Services. As a result I consider that an order can be made under s.14(2)(a)
claiming that there has been a material change of use of the land and that the Council will not
be liable for any claim for compensation.

3

Recommendation

3.1

That Hazardous Substances Consent Ref: PR/03/0007 be revoked.

3.2
That the Committee authorise the Head of Legal and Democratic Services to prepare a
Revocation Order under s14 of the Planning (Hazardous Substances) Act 1990 for the
Secretary of State to confirm.

3.3
That the delegated authority be conditional on the agreement of the owner, in writing,
to the revocation including a statement to the effect that they will not suffer loss and do not
intend to claim compensation on the revocation of the consent.

4

Reasons for Recommendations

4.1
The site is no longer used for the production or use of materials stipulated in the
current Hazardous Substances Consent and the continuation of the Hazardous Substances
Consent is no longer relevant.

5

Alternative Options considered and recommended for rejection

5.1
Not to revoke the Hazardous Substances Consent (HSC) Ref: Application No.
PR/03/0007. This course of action has been rejected because the continued existence of the
redundant HSC for the site inhibits the proper consideration of any proposed planning
application by the Health and Safety Executive and local planning authority.

6

Financial implications

6.1
As the site owners are being asked to confirm that intend to raise no objections to the
revocation of the Hazardous Substances Consent, no compensation will be payable by the
Council.

Answer:

CONTAMINATED LAND MANAGEMENT ACT 1997

– As at 20 January 2012
– Act 140 of 1997

TABLE OF PROVISIONS

Long Title

PART 1 – PRELIMINARY

1. Name of Act
2. Commencement
3. Objects of this Act
4. Definitions
5. Contamination
6. Responsibility for contamination of land
7. Concept of notional owner
8. General functions of EPA
9. Need to maintain ecologically sustainable development

PART 2 – (Repealed)
None

PART 3 – MANAGEMENT OF CONTAMINATED LAND

Division 1 – Preliminary investigation of land

10. Preliminary investigation orders

Division 2 – Regulation of significantly contaminated land

11. Declaring land to be significantly contaminated land
12. Matters to be considered before declaring land to be significantly contaminated land
13. Choice of appropriate person to be made subject to management order
14. Management orders
15. Details of management order
16. Actions that may be required by management order
17. Voluntary management proposals
18-27. (Repealed)

Division 3 – Ongoing maintenance of management action

28. Ongoing maintenance orders
29. Ongoing maintenance-restrictions and covenants

Division 4 – Action by public authority

30. Public authority may step in if person fails to act
31. Duty of public authority

Division 5 – Entry on land

32. Refusal of entry on land
33. Liability for losses

Division 6 – Costs

33A. Recovery of money under this Division
34. Recovery of EPA’s costs
35. Recovery of public authority’s costs in carrying out order
36. Recovery of other costs
37. Public authority’s priority if owner insolvent
38. Limit on liability of representative or trustee
39. Registration of cost notices
40. Charge on land subject to cost notice
41. Removal of charge
42. Repayment of appropriations out of Consolidated Fund

Division 7 – General

43. Multiple orders and notices
44. Amendment or repeal of orders and notices
45. Obstruction of persons
46. EPA may issue clean-up and prevention notices

PART 4 – SITE AUDITS

47. Definition
48. Statutory site audits
49. Accreditation panel
50. Application for accreditation as site auditor
51. Grant of accreditation as site auditor
52. Renewal of accreditation
53. Conditions of accreditation
53A. Directions
53B. Site audit reports and site audit statements
53C. Notification to EPA of statutory site audit
53D. Annual returns and other notifications
54. Site auditor to avoid conflicts of interest
55. (Repealed)
56. Revocation, suspension or refusal to renew accreditation
57. Holding out

PART 5 – INFORMATION

58. Record to be maintained by the EPA
59. Local authorities to be informed
60. Duty to report contamination

PART 6 – APPEALS

61. Appeals about management orders
62. Determination of appeals

PART 7 – ORDERS AGAINST DIRECTORS OR COMPANIES TO MANAGE CONTAMINATION AT OWN EXPENSE

63. Director of body corporate that is wound up
64. Director of body corporate that disposed of land
65. Holding company of body corporate that is wound up

PART 8 – EVIDENCE

66. Definitions
67, 68. (Repealed)
69. Proof of certain matters not required
70. Documentary evidence generally
71. Certificate evidence of certain matters
72. Evidence of analysts

PART 9 – AUTHORISED OFFICERS

Division 1 – Administration

73. Appointment of authorised officers
74. Scope of authority
75. Identification

Division 2 – Powers to require information or records

76. Application of Division
77. Requirement to provide information and records (EPA)
78. Requirement to provide information and records (authorised officers)
79. Manner and time for compliance
80. Provisions relating to information and records

Division 3 – Powers of entry and search of land

81. Powers to enter land
82. Entry into residential premises only with permission or warrant
83. Powers to do things on premises
84. Search warrants
85. Assistance
86. Care to be taken
87. Compensation

Division 4 – Powers to question persons

88. Power of authorised officers to require answers

Division 5 – General

89. Offences
90. Provisions relating to requirements to furnish information or answer questions

PART 10 – OFFENCES

Division 1 – Proceedings for offences generally

91. Proceedings for Part 3, 4 or 5 offences
92. Proceedings for other offences
92A. Penalty notices
93. Time for commencing proceedings

Division 2 – Who may institute proceedings for offences

94. EPA may institute proceedings
95. Other persons may institute proceedings with leave

Division 3 – Restraint of breaches without prosecution for offence

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One comment

  1. […] Consent (HSC) at the former Clariant Chemical Works, Nook Lane, Oswaldtwistle, subject to confirmation by the Secretary of […]

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