Insights Library
Major Hazard Facilities and the relevance of WorkSafe Guidance Note 2022
Our office was recently involved in the VCAT decision of Henry Trucking Pty Ltd v Hobsons Bay CC (2023) VCAT 1185, which considered an appeal against Council’s failure to decide two planning permit applications which collectively proposed the use and development of land in Spotswood for the purpose of industry, food and drink retail premises (including food and drink premises) manufacturing sales (brewery).
During the course of the appeal, one of the substantive issues for the Tribunal’s determination was the relevance of the proximity of the subject site to the Major Hazard Facilities operated nearby by Viva Energy and Ampol. Ampol was not a party to the proceedings. Viva Energy was but did not oppose the grant of a permit.
WorkSafe was notified of both applications and it wrote into the Council and Tribunal opposing the grant of a permit for the manufacturing sales (brewery) on the basis that it was within the ‘outer zone’ of the Major Hazard Facilities. The Council relied upon the WorkSafe advice and opposed the grant of a permit, notwithstanding that the expert evidence called on behalf of the Council was supportive of the proposal subject to appropriate permit conditions.
Of importance, the Tribunal was required to determine the relevance of the WorkSafe 2022 Guidance Note (Guidance Note), which was a key document informing WorkSafe’s opposition to the proposal. In that respect, the Tribunal found as follows:
- The Guidance Note could not be said to have been made by WorkSafe for any of its authorized purposes under Section 12(1) of the Occupational Health and Safety Act 2004.
- Without deciding the issue and adopting what the Tribunal described as “the broadest possible interpretation of Section 60(1A)(g) of the Planning and Environment Act 1987 the Tribunal concluded “it is tenuously arguable that the 2022 Guidance is a guideline adopted by a statutory authority to which a responsible authority and the Tribunal may consider before deciding an application…”. This commentary proceeded on that assumption that all that is required to “adopt” a guideline is the publication of it on a website.
The Tribunal then made a number of observations about the robustness of the Guidance Note and concluded that there was a lack of transparency on a number of matters which “has implications for the weight to be given to WorkSafe’s objections and the content of the Guidance Note…”. This, it said, was particularly the case where there was expert evidence before it that included a specific risk assessment of both applications undertaken by suitably qualified experts noting that WorkSafe’s assessment of the proposal as the Tribunal said was not based on a specific risk profile of the land or either application but rather only on the magnitude and severity of consequence for major incidents at Major Hazard Facilities.
The Tribunal also accepted the evidence from the experts that the relevant measuring point for the assessment was not the boundary of the Major Hazard Facilities but the source of the risk. It concluded that even if it were the case that the Guidance Note satisfied the requirements at section 60(1A)(g) that of itself was not a proper basis to interpolate the safety dimension areas contained in the Guidance Note as the threshold distances referred to in clause 13.07-2S of the Hobsons Bay Planning Scheme.
Relevantly, this decision of the Tribunal comprised a Senior Legal Member who undertook a thorough analysis of the relevance of the Guidance Note. This is to be contrasted, we say, with the approach taken by the Tribunal in Bujar Pty Ltd v Hobsons Bay CC where the Tribunal placed considerable weight on the Guidance Note. The Tribunal’s decision in Bujar is on appeal at the Supreme Court.
The takeaway message from the Tribunal in this decision is that Guidance Notes can, at times, lack a level of transparency which may otherwise be afforded to Guidance Notices which can otherwise go through a rigorous planning scheme amendment process.
