The recent issue over planning permission for a small part of the extended site of the T in the Park festival gives some profile to an issue which can sometimes come as a surprise to developers and land owners.
The issue is this. Certain facilities and infrastructure are classified as "hazardous installations". This has an impact on the willingness or ability of planning authorities to grant planning permission. Developments in certain proximities to hazardous installations must be referred by the relevant planning authority to the Health and Safety Executive (HSE). HSE will analyse the application, and will give the planning authority guidance in terms "advise against" or "don't advise against". It is then for the planning authority to take account of that advice in determining how to deal with the planning application. Decision makers are expected to ensure that new development does not significantly worsen the consequences should a major accident occur.
Obviously there may be issues for development in proximity to visible installations, such as chemical production facilities. No doubt there are also issues over who might actually want to live or work in proximity to facilities of that kind.
Less obvious, however, is the impact on the planning process of high pressure cross-country pipelines carrying "hazardous" substances. While the country is not exactly criss-crossed with these, a significant number exist in the UK, and in Scotland in particular, often running underground for many kilometres. (It was one of these (the BP Forties pipeline) which caused the issue for T in the Park.)
HSE publish guidance as to its approach in considering development
proposals in proximity to hazardous installations. This allows
planning authorities (and others) to assess the likely HSE advice
in relation to any particular proposal. The so-called PADHI tests
(planning advice for developments near hazardous installations)
review a number of aspects in order to reach a conclusion. The main
ones are:-
- the position of the proposed development in certain "zones" delineated around the installation;
- the intended use of the development; and
- the number of people likely to be within the development, when completed, and their vulnerability.(For example, an outdoor event producing substantial increase in numbers, even over a short period, is assessed as very vulnerable if outside, and with access difficult for emergency services.)
The "zones" concept works as follows. HSE identify certain distances from the installation, which it designates as inner, middle and outer zones. The risk in the inner zone is the greatest, and the risk diminishes with distance from the facility.
The overall aim of HSE is to manage population growth close to hazards, with the intention of mitigating the consequences of an accident. Obviously, this is by no means theoretical – recent UK incidents at Flixborough and Buncefield come to mind.
In the specific case of pipelines, the consultation zones run on each side of the pipeline. (For standing installations, the zones are concentric circles, with the installation at the centre.)
The result is that along the length of a pipeline there is effectively an invisible planning constraint.
Pipeline operators, whether entirely in the private sector (oil companies for example) or possessed of statutory powers (for example, Transco) almost without exception have rights through land based (in Scotland) on Deeds of Servitude for (in England) easement deeds.
These will typically contain clauses providing for the situation where development is prevented or restricted. The terms of these clauses will vary depending on the operator and, commonly, depending on the age of the pipeline. The essence will be that, when given notice that there is a restriction or prevention of development because of the presence of the pipeline (normally only because of the presence of the pipeline) the operator will have several options. These will normally include payment of compensation on some specified basis, protective measures on or around the pipeline to mitigate risk (and therefore improve HSE's view of the situation) or diversion of the pipeline. Colloquially, these clauses are sometimes referred to as "lift or pay" clauses. That description is both an over-simplification, and misleading. Developers and land owners should not assume that obtaining benefit from these clauses will be a simple matter.
Developers should also appreciate that diversion of a high pressure hazardous pipeline is a very different matter indeed from diversion of normal utilities. All sorts of issues arise, including identifying a shut-down window, assessing a new route (if possible at all) and methodology for the diversion. Significant pipelines are part of national infrastructure; costs for diversion are more likely to be in the millions than in the thousands.
What can a prospective developer do? Firstly, if the existence of a pipeline is known or suspected, the issue should be addressed at an early stage in working up a development proposal. The planning authority should in most cases be aware of any hazardous installation issue. The PADHI analysis can be run to get early guidance on whether there is likely to be an issue (although this is not a substitute for necessary referral to HSE at some point in the process). It may be possible to mitigate the effect – for example having the pipeline under areas used for structural landscaping, or putting the areas at risk to a use which minimises human presence for any more than short periods.
Early consultation of the pipeline operator is also important. The operator will commonly have experience in relation to the mitigation measures and may be able to assist in relation to design of the development. Alternatively, if zoning and risk issues appear insuperable, then the developer and the land owner can form a view at an early stage of how, if at all, to exercise rights under the Deed of Servitude (etc).
Clearly, this is not an everyday issue. When it does arise, however, it can raise significant complications. Particularly in relation to small scale developments, where the developer and/or the land owner may not have resource to engage with a pipeline operator, it can put an end to development prospects. Over the decades, it seems that pipelines, where possible, have been routed to avoid population and likely centres of population. With passage of time, development and population may well have crept towards the pipeline at various locations. Alternatively, there are instances of a pipeline being routed originally across a "blasted heath" which, while unlikely to be developed conventionally, may now be seen as a potential site for a windfarm!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.