Risk paradigm shifts take a generation

R2A recently acted as expert witnesses before VCAT (The Victorian Civil and Administrative Tribunal) regarding the rejection of a planning permit for a two dwelling redevelopment on a single site. 

The planning permit had been rejected by the relevant council on the basis of advice from WorkSafe Victoria that population ‘densification’ within a 1 kilometre ‘outer safety area’ distance of the boundary of a major hazard facility (MHF) was undesirable (see https://www.worksafe.vic.gov.au/land-use-planning-near-major-hazard-facility).

As the particular matter is presently sub judice, we won’t be commenting on specific details of this case in question at this time. But we observe that because the new MHF land use guidelines only came out mid 2022, it has created an avalanche of cases before VCAT with different VCAT members using different approaches to accept or reject development proposals which has flow on implications including appeals to the Supreme Court.

However, most interestingly, from a professional practice viewpoint, we can now confirm that the Victorian Major Hazard Regulator has adopted a consequence based approach to land use planning overturning the long established risk based (QRA - quantified risk assessment) approach. 

This is something R2A has pushed for years. Indeed, we stopped being risk engineers and became due diligence engineers in the late 2000’s and generally stopped doing MHF safety case work because of this concern. That is, that QRA was indefensible in general and particularly for land use safety planning. Such planning should be consequence based, testing for effective risk controls for predicted credible event severity as shown in the diagram below. 

The reason is simple, as the 2004 Maxwell Review which resulted in the 2004 OHS Act (the enabling legislation for MHFs) in Victoria suggests, that everyone is entitled to an equal level of protection. A hazard cannot be discounted merely because it is considered rare. It does not matter how low the risk is, if more can reasonably be done, then it should be and the failure to do so will be negligent (paraphrasing Chief Justice Sir Harry Gibbs in Turner v. The State of South Australia (1982)). 

For example, the fact that the likelihood of a single fatality is less than say 1 x 10-7 per year does not mean it can’t happen and nothing further needs to be done. As Section 4 of the Vic OHS Act notes: The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances. 

Or in the words of Barry Sherriff (one of the lawyers who helped draft the WHS legislation): Simply makes it clear that you start with what can be done and only do less when where it reasonable to do so.

This means that in R2A’s view, safety-in-design solutions to eliminate or prevent hazard consequences associated with MHFs should be considered and tested for reasonableness as part of the planning/building permitting process.

Look out for Season 2 of Risk! Engineers Talk Governance podcast where Richard & Gaye discuss this further.