Hydrogen, planning and safety law

Hydrogen needs specific safety management. Consideration of relevant risks and appropriate control and mitigation measures is needed in relation to storage, transportation and use, to prevent gas releases, ignition or corrosion. There are multiple health and safety laws that apply to hydrogen in addition to the Health and Safety at Work Act 1974, including the Dangerous Substances and Explosive Atmosphere Regulations 2002, the Control of Major Accident Hazards Regulations 2015 (COMAH), and the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2004.

Planning regimes differ across the UK and so the legislative framework that is applicable depends on where in the UK the project is located. Projects will need to obtain planning permission from the relevant local planning authority. In addition to planning permission, a hazardous substances consent may be required, usually from the local planning authority, where the quantity of hydrogen is two tonnes or more. Different hazardous substances regulations apply across the UK, and these set out detailed procedures for obtaining this consent. Further consents, such as water abstraction licences, would also be required depending on what is proposed.

Along with obtaining the relevant consents, operators of hydrogen projects will be required to comply with the Control of Major Accident Hazards (COMAH) Regulations, which apply across Great Britain. The COMAH Regulations apply to all operators of sites where dangerous substances are present, or likely to be present, in quantities that meet certain thresholds set out in the regulations. Different regulations apply to projects depending on the quantity of the hazardous substance relevant to the project, with stricter regulations applying to projects dealing with 50 tonnes or more (known as upper tier establishments), and with less stringent regulations applying to projects dealing with between 5 and 50 tonnes (known as lower tier establishments). The COMAH Regulations contain various notification and reporting requirements that must be followed.

Getting hazardous substances consent - HSE’s role

When an application for a hazardous substances consent is submitted, before determining the application, the authority must consult relevant statutory consultees who will provide specialist input. This includes HSE, (or the Office for Nuclear Regulation), and the relevant environment agency (the Environment Agency in England, SEPA in Scotland, and Natural Resources Wales in Wales).

When they are consulted, HSE will advise on whether the hazardous substances consent should be granted. They will prepare a consultation distance map, setting out the area in which they consider there to be significant off-site risk to people. This map will set out areas where they are required to be re-consulted in the case of future developments.

What happens if HSE advises against granting consent?

The HyBont project, in Bridgend, Wales, aims to use a solar plant near to the village to power a hydrogen generation and production facility. Both the local council and Welsh government have been strong supporters of the development, but the project has faced considerable opposition from the local community due to safety concerns around residential and commercial property next to the hydrogen storage location.

HSE did not object to the original application for planning permission for the HyBont project, but last month advised against the granting of hazardous substances consent due to safety risks. This will likely delay the project considerably. In a statement issued following HSE’s advice, the project developer highlighted the concerns were around ‘moveable storage containers’ – tube-trailer lorries transporting hydrogen offsite to customers. Discussions apparently continue with HSE to resolve the issues.

HyBont isn’t the first to face this problem. In April this year, the Metrobus hydrogen refuelling station in Crawley – planned to be the largest liquid refuelling station in Europe –  also received a representation advising against grant of consent from HSE. This was due to the storage of hydrogen near to other surrounding populations, including a school.

Both examples highlight that negative HSE representations can bring significant delays to projects and impact future operations. In Crawley, the hazardous substances consent for the site was still pending as of 21 November. Robust management of risks associated with hydrogen means delays like these could be avoided as well as building trust and confidence with stakeholders, regulators and the public, which is invaluable to any project.

What do you need to think about?

Failing to manage hazardous substances consent could become a blocker to your project that could add further complications, particularly where any concerns damage stakeholder or public trust. Robust assessment and understanding of risks are key to success and avoiding hurdles in any project.

Elements which the HSE will likely take into consideration include:

• The location of the hydrogen project, and the nature of the site and surroundings (as for Metrobus above);
• Expected production volumes and hazardous substance types;
• The safety record of project developers and partners;
• Transportation methods and local road infrastructure (as for HyBont above);
• Major accident mitigation plans; and
• Other relevant hazards and risks.

As hydrogen projects are more widely developed across the UK, best practice and credible information on managing risks associated with hydrogen continue to develop apace.

Our specialist teams work together, supporting clients at all stages of hydrogen projects to ensure smooth delivery and best outcomes. Our health and safety lawyers work closely with colleagues from our energy, planning and public law teams from the inception of projects, supporting and informing strategy for clients and not just when things go wrong.

If you have a hydrogen query, please get in touch with your usual contact or our health and safety or planning team.