DCAN 12: Planning Control for Hazardous Substances
Variation and Revocation of Consents
Applications to remove conditions (Article 58); or to continue a consent after change in control of part of the land (Article 60)
57. Article 58 of the 1991 Order relates to applications for the removal of a condition (or conditions) attached to a previous grant of hsc. Such applications may be made either before or after the original consent is implemented. For example, consent may have been given subject to a condition restricting the storage of a substance to a particular location and it may be desired later on to relocate; or a condition may require the removal of a substance by a certain date and the applicant may subsequently have good reason for continuing to use that substance after that date. In considering such an application, the Department can only consider the conditions - it cannot overturn the original decision. Thus, an operator can apply for a condition to be varied or removed without calling the principle of the consent into question. If the Department decides that the condition(s) to which the consent is subject should be varied or removed altogether, it must grant a new consent accordingly. Where it decides that the condition(s) attaching to the consent should not be changed, the application will be refused, but the original consent remains.
58. These provisions apply to the standard conditions attaching to a deemed consent as well as to conditions attached to a consent specifically granted by the Department. Thus, if a site operator wishes to secure the deletion of a deemed consent condition, for instance to enable variation or removal of a restriction on the manner in which or the location where a substance may be present, the application should appropriately be made on Form 2 and dealt with under Article 58.
59. By virtue of Article 58(3) of the 1991 Order, where there is consent for more than one substance, the Department may only have regard to a condition relating to a substance to which the application does not relate to the extent that it has implications for a substance to which the application does relate. An example may be where a condition relates to the location of another substance on a site and it is desirable to ensure that the two substances are kept apart. A similar situation arises under Article 58(4) where there is more than one consent available in respect of the same land.
60. Article 60 of the 1991 Order is designed to ensure that, when the control of land to which a consent relates is divided into two or more parts, a sensible arrangement is made as to the right to keep hazardous substances on one or other of those parts. Normally, a hazardous substances consent will run with the land (as would a planning permission) but, where there is a change in control of part of the land to which it relates, the consent will be revoked unless an application for its continuation has previously been made. If no such provision were made there could be an inappropriate result: for example, if there were a consent to keep a substance on a site part of which contains a factory in which the substance is processed, and the person controlling the land proposes to sell a part of the site which has been used as a staff playing field, but which also benefits from the consent, it may be inappropriate for any proportional benefit of the consent to transfer to the purchaser. In many cases the consent will impose conditions controlling the particular location within a site where the substances are to be kept or used, but that may not always be the case.
61. Article 60(4) of the 1991 Order empowers the Department to modify or revoke a consent which is subject to an Article 60(2) application. Where it does so, the person in control of the whole of the land before the change is entitled under Article 66A of the Planning (Northern Ireland) Order 1972 1 to be compensated for any loss or damage sustained as a direct consequence. It is likely that the Department will at least need to modify the description of the land to which the consent relates; and modifications of conditions may be necessary. But it should rarely be appropriate to use these powers to impose significantly more onerous conditions on a consent or to revoke it. In the typical case where the consent needs to be modified to refer only to one part of a divided property it seems unlikely that a sensible modification will normally give rise to any claim to compensation.
62. Applications to be determined under Articles 58 or 60 of the 1991 Order will be made on Form 2 at Schedule 1 to the Regulations. Although a consent or deemed consent will already have been granted in these cases they could give rise to issues of no less significance than new applications for consent. Therefore the same publicity (advertisement by the Department) and consultation procedures as for applications for a new consent will apply.