DCAN 12: Planning Control for Hazardous Substances
Temporary presence during transportation
73. Article 53(2) of the 1991 Order provides that the temporary presence of a hazardous substance while it is being transported from one place to another is not to be taken into account (for consent purposes) unless-
- it is unloaded; or,
- it is present on, over or under land in respect of which there is a hazardous substances consent for any substance, or in respect of which (not taking account of the substance being transported) there is required to be such a consent for any substance.
74. The effect of this is that the temporary presence of hazardous substances at a site should not by itself be sufficient to require a hazardous substances consent, if, excluding the substances held only on a temporary basis, no other substances are present at the site in quantities which require, or as a result of the addition rule, combine to require a hazardous substances consent. However, where a consent is required for the presence at a site of any hazardous substance (excluding substances being transported) then those substances present on a temporary basis inside the site will also have to be taken into account in calculating the quantity of the substances present at the site.
75. The term “temporary presence” is not defined in the 1991 Order. The question of whether a vehicle’s presence is temporary or not will be a matter of fact and degree, depending on the particular circumstances. The Department may reach the view, for example, that a controlled quantity of a substance has been kept on a vehicle for a sufficiently long period in one particular place for it to amount to a storage use which is outside the purpose of this exemption. Judgement may also be required in considering whether a substance has been “unloaded”. Only the Courts can give an authoritative interpretation of the law on this point. However the view is taken that unloading will have taken place when a vehicle is divested of its load, even if the substance remains in a container or packaging.
76. The exemption in regulation 4(1) complements that in Article 53(2) of the 1991 Order, by dealing with the situation where a hazardous substance has been unloaded while it is being transported from one place to another. This is intended to cover the situation where a substance has been taken off one vehicle or vessel for the express purpose of transferring it to another. As with the Article 53(2) exemption, it will be a matter of judgement as to whether the presence is a temporary one. Moreover, there should be a clear intention to transfer the substance to another means of transport (as may be illustrated, for instance, by a transportation contract) as distinct from the situation where a substance has effectively gone into storage.