How Councils can eliminate town planning disasters
Following our recent expert witness work at VCAT (Victorian Civil & Administrative Tribunal) regarding a residential re-development in the outer safety zone of a Major Hazard Facility, and the ruling that accepted our precautionary approach, we have been further discussing the critical role council play in eliminating town planning disasters.
The rise of WHS legislation mandates that there needs to be a positive demonstration of safety due diligence for major hazards such as dams, major hazard facilities and environmental hazards including bushfires, cyclones and floods, etc. Presently, the most robust and effective way to achieve this known to R2A is by the use of the safety case concept to demonstrate SFAIRP (that hazards have been eliminated or reduced so far as is reasonably practicable), that is, the rise of the SFAIRP safety case. SFAIRP is the ‘modern’ definition of ‘safe’.
The inclusion of criminal manslaughter provisions in safety legislation (which therefore includes dealing with hazards that were either known or ought to have been known) has reinforced this. It is now absolutely essential for anyone (especially officers as defined by corporations’ law) responsible for the management of any facility that can cause fatalities, like dams, major hazard facilities and the like or approving development in areas with known extreme environmental hazards, to positively demonstrate safety due diligence in a way that is scientifically defensible, organisationally useful, publicly digestible and will survive post-event legal scrutiny.
Note also that on 1 July 2021, Victoria commenced the SFARP provisions of the Environmental Protection Act 2017. Amongst other things, this Act imposes a general environmental duty (GED) on a person to minimise, as far as reasonably practicable (SFAIRP), risks or harm to human health and the environment (Section 25). Particularly, it further requires the person to eliminate such risks, and if not reasonably practicable to do so, to reduce them so far as reasonably practicable (Section 6). If not already, it appears to be only a matter of time that the SFA(I)RP concept will be entrenched in other legislation and regulatory instruments.
In this context, it is important to remember that legally, safety risk does not arise because something is inherently dangerous, which all dams, major hazard facilities and extreme environmental events potentially are; rather it arises because there are insufficient, inadequate or failed precautions, as determined by our courts, post event.
Following an event, the court is actually testing to see if there were any other controls or precautions suggested by the expert witnesses that were reasonably practicable in view of what was known at the time.
The point is that in safety terms, the OHS/WHS legislation is focussed at high consequence, low likelihood event and demand that all reasonably practicable precautions are in place rather than achieving a pre-event level of risk or safety. You don’t ignore the lesser problems but you just apply recognised good practice and move on. This will significantly reduce your workload.
After attending the International Public Works Conference recently in Melbourne, it occurred to me that there are great opportunities for councils to help build more resilient and robust communities as part of the town planning processes.
One of the key messages from the conference was ‘build back better’ and for there to be a shift in focus from recovery efforts following an incident to robust and resilient communities that can better withstand these credible but critical events.
There are two approaches that are commonly used in land use planning.
The target level of risk approach tends to sterilise planning areas from development and ignores the rare but catastrophic hazards. This is indefensible from a WHS/OHS perspective and just plain silly from an engineering design perspective. Any site has issues and for the design to be successful, all these must be addressed.
The alternate approach is the precautionary approach to land use planning. This approach encourages planners to test for effective risk control options for foreseeable credible critical (worst-case) severity events. This means that the closer to the hazard a structure is, the greater the precautions need to be. In principle, provided the level of protection is high enough, there are no limits to where a structure could be built in relation any credible critical hazard.
Just like any other environmental hazard including bushfire, flood, dam break, electrical blackout, cyclone, high pressure gas main rupture, major hazard exposures, communities need to design for resilience.
Work out the credible worst case scenario and design accordingly.
For example, golf course and open public spaces provide fire breaks to townships from bushfire risk rather than allowing residential building right to the bush fringe.