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In the first major challenge to HSE advice and consultation zones for ten years and following a 10 day inquiry, an Inspector has upheld all aspects of the HSE methodology in setting zones for major hazard installations and its application on the facts. The challenge to the science failed, the evidence against the HSE approach dismissed and costs were awarded.
The University of Chester established a faculty of science and engineering in buildings previously occupied by Shell for research and development in the Inner Zone of the Stanlow Oil Refinery near Ellesmere Port on the assumption that planning permission was not required for the use which it contended was not material. Cheshire West and Chester Council refused certificates of lawful use contending that there was material change of use and took enforcement action principally on the basis of a strong advise against from the Health and Safety Executive (HSE) relating to the residual risk posed to the students by close proximity to the refinery.
The Zones had been set by reference to the protection concept (which relies on a representative worst case major accident as a proxy for all the hazards from the refinery) and not by reference to a Quantified Risk Assessment (QRA) which seeks to assess each possible hazard and the risk of each to arrive at the appropriate zones. The HSE contended that the appropriate RWCMA was a catastrophic failure of a petroleum storage tank leading to an idealised pool of flammable liquid which, if ignited would cause mass casualties at the Faculty. Students were treated as in Sensitivity Level 3 – and were distinguishable in risk and policy terms from employees.
The University submitted detailed evidence which questioned the use of the Protection Concept and promoted the use of a QRA instead, modelled the RWCMA to show that the fire would not reach the faculty and contended that students were, on the facts, indistinguishable from employees.
Having found that there was a material change of use, the Inspector addressed the HSE advice and the logic for it in detail. The use of the protection concept for flammable liquids remained appropriate especially for complex refineries, the RWCMA selected was appropriate; the University’s modelling of it was fundamentally flawed and misleading; and students were properly treated as in a different category from employees.
The HSE, wholly exceptionally, applied for its full costs because of what it said was the misconceived and seriously misleading expert evidence submitted. Full costs were awarded.
The appeal decision may be viewed here.
The costs decision may be viewed here.
David Forsdick QC and Katrina Yates appeared for the HSE.
Christopher Lockhart-Mummery QC and Jenny Wigley appeared for the University.
