Former NIPA Chemical Site – EA answer some key questions VS. Hazardous Substances Consent Ref: PR/03/0007


http://hhgrahamjones.blogspot.co.uk/2012/09/former-nipa-chemical-site-ea-answer.html

Tuesday, 11 September 2012

Former NIPA Chemical Site – EA answer some key questions

I am visting the site this week but in the meantime on behalf of a constituent have asked Steve Molyneux at the Environment Agency to answer some more recent queries I have received.

‘I have seen children playing on and around this site, ‘surely there could be a notice served to Mr Morgan to get this site made secure’

Reports that children are accessing and playing on the site is obviously a real concern. To ensure that the site is adequately secured the Health and Safety Executive (HSE) have already served formal enforcement notices on the landowner(s), Lockgate Mount, Amcis and Wymborne requiring them put in place measures to restrict access. I’ve copied Mike Sebastian (HSE principal inspector) into this email. He is the HSE lead on this issue and should be able to add more detail here.

‘The water from the site is pouring into Lottice Brook and seeping into the land around this area’.

The Environment Agency continue to have concerns that surface water management on site is poor and drainage from the site is reaching the local stream, Lottice Brook. As a consequence we have put in place a sampling and monitoring regime to determine the risk the site presents to water in the brook and have also served an enforcement notice on the landowner Lock Gate Mount Ltd to improve surface water management on site to protect the brook. We are still awaiting an action plan from the landowner on what they intend to do and continue our investigation into environmental offences at the site.

‘You and the EA have admitted this site is contaminated and still nothing has been done, why’, ‘this site was sealed and a notice placed on it that the land had not to be disturbed for 20 years, why did it happen?’

The site is contaminated due to the sites former use as a chemical works, however hasn’t been ‘legally’ determined as ‘contaminated land’ . The Environment Agency continue to gather sample results to understand the sites overall impact on the brook and are in discussion with Hyndburn Council to establish if the site should be determined as contaminated land. If it is proved that the site is having a significant impact on the brook then it could be. This is Hyndburn’s decision. It will be the case that this site has more than likely been causing some pollution of the brook for many decades. However, the lack of adequate surface water management is certainly not making the current situation any better.

*** Separately, I’m not aware that this site was ever ‘sealed’ or of any notice placed on it that the land had not to be disturbed for 20 years? If the land is designated as contaminated the responsibility remains with the owners to ensure that people and the environment are protected.***

**********************************************************************************************************************

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.

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