Hazardous substances consent: the fee and the triggers

Hazardous substances consent is needed when a hazardous substance is present at or above its controlled quantity on, over or under land, and it is a separate consent from planning permission with its own application, its own fee and its own decision maker. A restaurant with bottled gas in a rear store will not normally need it. A cold store with an ammonia charge, a plant nursery holding fertiliser, a chemical blender or a fuel depot may well.

The fee is set in regulations rather than negotiated, and it is a flat figure rather than one scaled by site area or tonnage. Check the current schedule before you budget, because the fees in this area are revised alongside the wider planning fee regulations.

What triggers the need for consent

The regime sits in the Planning (Hazardous Substances) Act 1990 and the Planning (Hazardous Substances) Regulations 2015. Schedule 1 to the 2015 Regulations does the work: it lists named substances and generic categories, each with a controlled quantity expressed in tonnes. Present the substance at or above that quantity and consent is required before the substance arrives.

Three points catch operators out.

The first is that the trigger is presence, not use. Storage counts. Material in transit through the site counts once it is there. The second is that consent attaches to the land, so buying a site does not automatically bring the consent with you in the way a planning permission would. The third is that the quantities are lower than people expect for some common materials, particularly oxidising agents, flammable liquids and toxic gases.

Controlled quantities and how they are counted

Counting is where most errors happen. Substances falling within the same category are aggregated across the whole of the land in the applicant's control, not assessed tank by tank. A site with four separate 8 tonne vessels of the same flammable liquid is a 32 tonne site.

There is a de minimis rule. Quantities below a small proportion of the controlled quantity may be disregarded where they are located so that they cannot act as the initiator of a major accident elsewhere on the site, which is a judgement about separation distances and bunding rather than a simple arithmetic exemption. Where different categories are present together, the Regulations set out a summation rule so that a site holding several substances each below its own threshold can still cross the line.

A short worked illustration. A distribution unit holds 12 tonnes of a Category 2 flammable liquid, 4 tonnes of an oxidising substance and a 6 tonne ammonia vessel serving a chill room. None is obviously at its own controlled quantity, but the summation rule may still bring the site into the regime, and the ammonia figure alone will be the one to check first. This example is illustrative only.

The fee and what the application must contain

The application goes to the hazardous substances authority on the prescribed form, with the fee. Content required includes the substance, the maximum quantity to be present, the manner in which it is to be kept and used, a plan of the land identifying where the substance will be, and details of the site and surrounding land.

Budget for the technical work rather than the fee. Establishing the maximum quantity, describing containment, and producing a site plan that a safety adviser will accept is where the cost sits, and it usually sits with a process safety consultant.

The hazardous substances authority and the safety regulator

For most sites the hazardous substances authority is the district, borough or unitary council: the same body that determines planning applications, though acting under different legislation. There are exceptions where another body takes the role, so confirm it rather than assuming.

The authority consults the Health and Safety Executive, which advises on the risk to people in the surrounding area, and the Environment Agency where the environment is in question. The safety regulator's advice on separation distances is the part that most often reshapes a scheme, because it can rule out a proposed vessel location that works perfectly well in operational terms.

Conditions, revocation and continuation

Consent may be granted with conditions, including conditions on how a substance is kept. It may also be revoked or modified by the authority, and in defined circumstances compensation is payable, which is a meaningful difference from the planning permission regime.

The one that catches buyers and tenants is continuation. Where there is a change in the person in control of all or part of the land, the consent can be revoked unless the new controller applies for the consent to continue within the period the legislation allows. Missing that window means starting again with a fresh application, and the site may be operating without consent in the meantime. On any acquisition of a site holding controlled substances, that check belongs in the first week of due diligence.

How it interacts with the planning application

The two consents are independent. You can hold planning permission for a building and still be unlawful in storing what you intend to store in it, and you can hold hazardous substances consent for a substance in a building you have no permission to erect.

In practice the sequencing works best when both applications run together, because the same site plan, the same containment description and the same separation distances feed both. Where the planning application involves development near an existing hazardous installation, the HSE consultation distances around that installation become a constraint on your scheme rather than a matter for your own consent, and the authority will consult on that basis. A Planning Statement drafted for a site handling controlled substances should say plainly which consents are held, which are applied for and which are not needed, with the quantities that lead to that conclusion.

Budgeting for a site handling controlled substances

Set aside four cost lines, not one. The statutory fee, which is small. The process safety input to establish quantities and containment, which is not. Any redesign forced by separation distances. And the recurring cost of keeping the consent aligned with operations as substances and volumes change.

Sites with controlled substances also tend to carry ground risk from historic use, so read the hazardous substances work alongside the cost of a contaminated land investigation programme rather than treating them as separate budgets. Utility capacity is the other early cost that bites on this sort of site, and the note on utility connection costs sets out where those charges land.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. For specialist technical reports, qualified professional input may be required.

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