Committee Report NSC



North Somerset Council




Date of Meeting: 5 December 2012


Subject of Report: Hazardous substance consent for the storage of high flash distillates (aviation fuel kerosene) (minimum flashpoint 38 degrees celsius) within 3no. existing tanks


Town or parish: Portishead RedcLiffe Bay


Officer/Member presenting: Head of development management 


Key Decision: No




The application be APPROVED subject to the following conditions:



The consent hereby permitted shall be begun before the expiration of three years from the date of this approval.



Reason: In accordance with the provisions of Section 9 (1) of the Planning (Hazardous Substances) Act 1990.



The Hazardous substances shall not be kept or used other than in accordance with the particulars provided on the application forms including supporting information provided in the Fisher German letter dated 15 June 2012 (and revised substance location plan drawing no 3 rev A) nor outside the areas marked for storage of the substances on the maps and plans that formed part of the application.



Reason: In accordance with the provisions of Section 9 (1) and (4) of the Planning (Hazardous Substances) Act 1990 and to ensure no adverse impacts on neighbouring residents in accordance with policy CS3 of the North Somerset Core Strategy.



The hazardous substance permitted to be stored on site under this consent is restricted to a maximum of 21,010 tonnes of refined aviation fuel kerosene (min. flashpoint 38 degrees Celsius). 



Reason. In accordance with the provisions of Section 9 (1) and (4) of the Planning (Hazardous Substances) Act 1990 and to ensure no adverse impacts on neighbouring residents in accordance with policy CS3 of the North Somerset Core Strategy.


1.                SUMMARY OF REPORT


The application for Express Consent is to bring three of the existing tanks, no’s 4, 5 and 9, back into use to store aviation fuel. The maximum capacity of tanks 4 and 5 is 11,055 cubic metres each. For tank 9 is it 5,484 cubic metres. The total amount to be stored in all three tanks is 21,010 tonnes. The application includes 30 cubic metres of storage in moveable tankers used to remove slops from the site periodically. Slops are removed approximately twice per year in four/five tankers visiting the site at the same time. This arrangement will not change as a result of this consent and that no additional tankers will be required.


As the Hazardous Substances Authority, North Somerset Council decides applications for Express Hazardous Substances consent. There is a right of appeal against refusal. The Council has powers to add conditions to consents if this is absolutely necessary and also has to enforce them. The consent must set out the maximum amount of the controlled substance being permitted on site at any one time (section 9(4) of the 1990 Act). Conditions relating to how substances can be kept or used may only be added if this is in accordance with the HSE’s advice. The Council consulted the required bodies for expert advice and assessment of the application and they have not objected to it. Condition 2 is proposed at the request of the Health and Safety Executive. Approval does not prevent the Council dealing with the unauthorised use of tanks 14 and 15. It is therefore considered that there are no material considerations why the application should not be approved. 


2.                Policy


Refer to the North Area Committee Report in Appendix 1.


3.                Details


The full details of the application are set out in Appendix 1.


There has been extensive consultation with the Health and Safety Executive (HSE) in particular in relation to this application. It was initially reported to the North Area Committee on 13 September. No statutory consultees objected to it. Following objections from neighbours on the basis of site safety and nuisance from the proposal the committee resolved that it be deferred to allow for a meeting to be arranged by the Council’s Chief Executive with residents and the Chief Executive of the Health and Safety Executive so that the HSE could respond to queries raised by neighbours and provide more information about their decision not to object to the application. The HSE were not prepared to attend a meeting but provided additional written explanation in response to questions posed by residents. This was reported in the update sheet for that committee.


Notwithstanding this, North Area Committee considered that the application should be refused for the following reason:


‘The application has insufficient information on the safety aspects to demonstrate that the use of the three tanks would not result in an unacceptable safety risk to local residents.’


There is no independent assessment of site safety to back up this refusal reason. Although the Council is the Hazardous Substances Authority the only Expert advice provided is by the HSE and the Environment Agency and neither body objected to the application (providing condition 2 is attached to any consent). The HSE’s response to residents’ questions gives more background information about how it arrived at its advice. The HSE stresses that Aviation fuel is significantly less hazardous than petroleum which was the principal stored product at Buncefield and therefore majority of the comparisons drawn by residents between the two sites are not relevant. It also advises that major accidents are extremely rare events and that the site safety record at Redcliffe Bay is good. Site safety is controlled by the HSE and the Environment Agency.  A balanced approach is therefore necessary and whilst some residents have requested that other forms of risk assessment should be adopted the HSE considers this is unnecessary. Its approach is based on current government requirements, founded on good practice and proportionality to the level of risks and the need for development and major hazard sites to co-exist in this country. The HSE advises that the reuse of the three tanks will not increase any hazards at the site. Officers are clear that the HSE will not alter its view of the proposal.


The Health and Safety Executive is an independent regulator of hazardous sites and its remit is to act in the public interest to assess and regulate and ensure that hazardous substances sites are safe and do not result in hazards to the public. Officers consider that to ignore the advice of such a body without any independent justification would be extremely unwise and would be very unlikely to receive support at appeal. If the application is refused the onus will be on the Council to prove that the HSE’s advice is incorrect and there is no such evidence.  To do so would invite an appeal by the applicant. This is a circumstance where there is a clear risk of a costs award as the Council would be unable to defend its position.


4.                Consultation


Details of consultation responses are in Appendix 1.


5.                Financial Implications


The Council is at risk of an award of costs against it if it cannot justify its decision on the basis of development plan policy or other material considerations. The reasons advanced at North Area Committee relate to safety aspects of the proposed development but there is no evidence to support this assertion and it must be recognised that National Health and Safety body in the UK does not object. Therefore it is highly likely that an appeal against refusal and an application for costs would be allowed.


6.                Equality Implications


Equality issues are taken into account in all planning decisions.


7.                Corporate Implications


As set out in the Committee report.


8.                Options considered


Applications for Hazardous Substances Express Consent can either be approved or refused.



Roger Willmot/Sally Evans.


Background Papers

Appendix 1: North Area Committee report 8 November 2012 and update sheet