Design trumps Risk Assessment - Our VCAT Hearing Success (as Expert Witnesses)

In this episode of Risk! Engineers Talk Governance, Richard Robinson and Gaye Francis discuss their recent success (as Expert Witnesses) at VCAT (Victorian Civil and Administrative Tribunal) and how design trumps risk assessment. 

They discuss their case involving an application for a building permit in the outer safety zone of a major hazard facility. WorkCover advised against building two new dwellings due to increased population and societal risk. However, Richard and Gaye, as expert witnesses, argued that proper safety and design measures, such as laminated windows and steel roofs, could mitigate the risks. 

 The VCAT decision supports R2A’s position, and emphasises the importance of, working out the credible worst-case scenarios and then designing for it. 

 You can listen further about this VCAT hearing in Season 2 episodes 1 & 2 of our podcast.

 If you’d like to learn more about Richard & Gaye, visit www.r2a.com.au. 

 Please submit any feedback or topic ideas to admin@r2a.com.au.

Transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss their recent success at VCAT (Victorian Civil and Administrative Tribunal) and how design trumps risk assessment. We hope you enjoy the episode. Please give us a rating if you do also subscribe on your favorite podcast platform.

Gaye Francis (00:26):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:28):

Hello Gaye. Good to see you again.

Gaye Francis (00:30):

Good to see you. We do see each other often.

(00:34):

Today we're going to talk about our VCAT success and our safety and design issue, again. We have covered this a number of times in a couple of other episodes, particularly in season two, which we did in episode 1 of season two, which is callled "Safety and Design, and then episode 2 of the season 2, we discussed "The Demise of ALARP in Major Hazards". We have finally got an outcome from VCAT that we were expert witnesses for and it was in our favour, which was a part of surprise, I think?

Richard Robinson (01:11):

I'm not sure about that. I mean, I think from our point it was the only logical outcome, but it's very encouraging for the legal system to support that position.

Gaye Francis (01:20):

But it was against other decisions... the decision that Member Whitney made was different... she came to a different conclusion than other VCAT.

Richard Robinson (01:31):

Correct. She had to roll the system and she had to make particularly clear that she'd done it in the way that if somebody appealed to the Supreme Court, it would be likely to survive the experience. But that's what competent members do.

(01:46):

Now, just for the record, if anybody's interested, the decision, date of the order is 12th of March, 2024. The citation is Nasralla v Hobsons Bay City Council [2024] VCAT 212. That's if you want to look it up because all this information's available publicly and so you can go and look it up if you wish.

(02:09):

It's actually an 88 page decision, which for VCAT is a true monster, and about two thirds of it is to do with planning law and the application of the way in which the major hazards advice and how it was represented and so forth was put forward.

Gaye Francis (02:23):

Just before you go on, it's probably worth just giving a quick summary of what the case was. So it was the application for a building permit to provide two new dwellings on a piece of land that only currently had one old house on it. So it was to upgrade that to two new dwellings. However, it was in the outer safety zone of a major hazard facility in the Hobson Bay area (in Victoria, Australia). And so it did have a formal planning overlay on it, but WorkCover, not as a responsible authority but as an advisory authority, went against building the two dwellings. And that was (because) it increased the population at that site.

Richard Robinson (03:07):

So it was a societal risk argument, but the current house normally would have four persons present in it and all other things being equal, if you build two houses, you'd have eight persons present and presumably if you didn't do anything, they'd be subject to the equivalent level of risk, which means there'd be eight people at risk rather than four people at risk. And that was the advice from major hazards.

(03:26):

Now, the trick about major hazards was, I remember, previously they used to do it on a target level of risk basis, like the likelihood of killing a single person on one by 10 to the minus seven per annum and then plotted a risk curve. And this area, this region used to be beyond that boundary. And so the business for knocking down an old house and putting up two units or two houses was a very popular activity. And indeed the blocks on either side of this particular house had just that done to it. So it wasn't as though the young people who were developing the site were doing anything new or novel. And what was particularly grueling for them was that they'd gone through the whole planning process and then as the last gasp, the council had written to major hazards and major hazards had changed their planning or advice. And so rather than doing on the individual risk contour had said it's a credible worst case scenario, it's basically a kilometer away from this site if you're in there, no go.

Gaye Francis (04:21):

Yeah. So they changed it to consequence basis, which we've discussed in previous podcasts.

Richard Robinson (04:28):

Now, as I said, it was an 88 page decision and took six months and we were a little bit puzzled as to why it was taking so long. But when we looked at the comprehensive nature of the decision, it became pretty clear why the member had done it that way because she was trying to cover all bases and prevent any further things, issues coming back, particularly in appeal to the Supreme Court.

(04:49):

Now, as I mentioned earlier, about two thirds of the judgment was to do with planning matters and it's probably a more comprehensive view of planning matters. Now we're obviously not lawyers and we're certainly not comprehensive in planning law, but from our reading of it, and if anybody's interested in that application of planning law in Victoria, it's one of the more comprehensive ones that I've seen.

(05:12):

It also included a thing to do with the appeal to governor and council, which was, I have to say, completely new to us because I'd never seen that one before. And that seems to be because if you're dealing with somebody having to appeal to Supreme Court, that's a pretty expensive thing. And so in the case of hardship or something like that was involved and there was a general policy issue involved, which is the case in this situation -- other people had had houses rejected and other people had had houses approved depending on the whim of the previous different members making decisions. It had to be that comprehensive.

(05:47):

Now, what particularly pleased us was the core decision, which I got to say from our point of view as well, is the last 20% because there were a number of appendices in the decision as well, was that WorkSafe had gone for consequence. They'd said there's an inner safety area and an outer safety area, which was I think was...

Gaye Francis (06:06):

300 meters and a kilometer.

Richard Robinson (06:09):

This building was inside the outer safety area, but not inner safety area. And after an awful lot of yelling and screaming with the regulator and the major hazard facility concerned, everybody agreed that the credible worst case in that outer safety area was broken windows, which is in the safety case summary from 2018, basically from overpressures and things like that. There was no suggestion that there would be missiles coming out of the plant that could get that far or any of those sorts of things.

(06:40):

Now, what slightly confused us was that nowhere in all this had anybody considered safety and design to deal with what was now a known credible consequence driven hazard. And the core issues from our viewpoint where if you're inside the house and an explosion overpressure comes your way, if the windows blow in and it turns into shrapnel, and this is a well-known terrorist modus operandi, you could get impaled and the correct way to design against that is to put laminated windows in there. And one of our associates in New Zealand, Dr. Frank Stocks, was busily designing the new Auckland Airport. And amongst other things, he was fretting about people leaving explosives around and they were busily putting laminated windows around the place to deal with that hazard. So this is a recognized good practice, although I've got to say it's not anywhere in any particular standard per se, although that's not true for high explosion major facilities.

Gaye Francis (07:34):

But not for domestic purposes.

Richard Robinson (07:37):

That's correct.

(07:38):

And the other hazard, which we were concerned about was that if you put a tile roof in the area and you have an explosion overpressure coming your way, tiles and things sitting on top, gargoyles, whatever attractive thing you want to put on your roof, get knocked off and then these things fall to the ground and can obviously hit people on the ground and around them. And we said tin roofs or steel roofs, colorbond roofs, are a better way from a design viewpoint. And if you did both these things...

Gaye Francis (08:04):

then that would address the two hazards.

Richard Robinson (08:06):

Yeah, the credible critical consequences. And in any event, the event would be rare because that's the whole point of the major hazard safety case regime and nobody's in any doubt about its rarity. So that part wasn't a question. And if you did these things, it wouldn't actually provide the design. Now, what was really odd from our point of view is when we reviewed the plans, it looked like they had almost designed for this particular hazard, even though at the time...

Gaye Francis (08:31):

it hadn't been on the radar.

Richard Robinson (08:32):

It hadn't been on the radar, because it had a steel roof. I mean, if you're against big hailstones breaking tile roofs up, a steel roof is a much superior way to go.

Gaye Francis (08:41):

And I think that's modern design anyway. There's not many houses that design with, well, not in our (Melbourne suburban)area anyway that have...

Richard Robinson (08:48):

Well, it's normally more economic to put a steel roof on, colorbond, and that was already specified. Whilst it wasn't on the plan, shown on the plans, the advice from the owners, the Nasrallas, was that the architect advising had already said we planned to put laminate on the windows, but that was from thermal (perspective) it wasn't on the plans...

Gaye Francis (09:09):

It was an efficiency, heat efficiency viewpoint.

Richard Robinson (09:12):

So that was going to be there anyway. And then when we looked at the plans and completely to our surprise on the second floor, the only place where there might've been a window facing the plant, which where you get the reflective wave and the greater pressure, there was no window there, it was just a blank wall. And if I've been asked to design a building to deal with that pressure wave, that's what you would've done. We were obviously quite surprised by this and we could sort of just say, look, if you were going to design for the hazard as spelt out by the major hazard facility as certified in effect by the major hazards, these are the controls you put in place. And they were already there.

(09:53):

And after the 88 pages, Member Whitney said, I agree. And didn't even require the planning permit to be changed beyond that which had already been agreed to by the council since all those controls that we would have expected to be in place had already been agreed to be there.

(10:13):

Now the reason why this is so important, and Gaye's just nodding her head wisely over there, is because the business of working out what the credible worst case concept is and then designing for it is clearly, according to VCAT, the way forward.

Gaye Francis (10:33):

And this would appear to be the first decision that's been made on that basis.

Richard Robinson (10:38):

Correct.

Gaye Francis (10:39):

So that makes it really interesting because that gives councils and organisations or councils that have major hazard facilities in their municipality, an additional tool that says: Well, we can actually design and have houses in these areas in these outer safety zones because there's precautions available to deal with them. So it's almost putting, and I don't know whether this exists formally, I don't think it does, it doesn't appear to be a major hazard overlay on any of the planning permits or planning procedures that we can see. But it's really interesting that some of these things haven't been put forward for new buildings and new dwellings in areas with major hazard facilities.

Richard Robinson (11:26):

And it's something we haven't understood. I mean, as we pointed out, in our opinion, it actually doesn't make much sense. Because if you're in a bushfire overlay, you have to design for bushfires. If you're in a earthquake zone, you have to design for earthquakes. If you've got a serious windstorm around, you have to design for windstorm. What you have to do is design for whatever location you find yourself. And that's something which we hammer in our texts and everything else that, I mean, if you live near a major hazard facility, you've got to take it into account that's just obvious. And the closer you are, the more you've got a design for it. And so the example we give, if you're immediately adjacent to it, you might wind up in an underground, reinforced conquering bunker with its own air supply without a view or anything. It'll be fiendishly the expensive and one would imagine you wouldn't want to live there. But it would be safe.

Gaye Francis (12:14):

So there's things that you can do. So the safety and design element, and I think just from a town planning viewpoint, all of those things hadn't been taken into account. Now, I don't know whether there's not the expertise in council to deal with these things or engineering designs to be able to bring that into it.

Richard Robinson (12:31):

Councils have been pretty much de-engineered in the last 20 or 30 years.

Gaye Francis (12:35):

But we were the only technical people involved in this particular case.

Richard Robinson (12:39):

Yeah, and that was a bit of a surprise to me too because there was no expert witness.

Gaye Francis (12:43):

For the council.

Richard Robinson (12:45):

Or for the major has facility or for that matter major hazards. The only people that actually turned up were people representing the legal aspects.

Gaye Francis (12:54):

And the policy position.

Richard Robinson (12:55):

And legal policy aspects. So overall, I mean there's some larger issues and probably the subject of another podcast, which could be sort of talked about here, I suppose the one that puzzled me the most in which we hammered in there significantly... You see what frustrated us if you didn't improve the design at all and just left the existing house there, the four people living in the existing house were subject to broken windows and bits being blown off the roof, i.e. relatively, they were in a more dangerous situation than the eight people in the new houses that were designed for that hazard. And so it was lower risk to develop than not to develop.

Gaye Francis (13:35):

So from our viewpoint, you're potentially setting people up for a fall by not approving improvements.

Richard Robinson (13:43):

Well, that's correct. And that's not in the council's interest, it's not in the people who live there's interests and it's not in the interest of the major hazards facility. So how that situation could arise in the first place is something that we just didn't get.

Gaye Francis (13:54):

So from our viewpoint, I think it was a pretty straightforward decision and the solution was very, very obvious. But it was a very lengthy and difficult complex process to go through to get two new dwellings approved.

Richard Robinson (14:12):

Well, yes, that's right. Although I have to say part of it's we started online and when we actually went to the VCAT hearing in person, I think that did bring things to a head and get everything functioning a lot faster.

Gaye Francis (14:25):

So I think we are pretty chuffed with ourselves that we got a good result for the Nasrallas and safety and design was the way to go.

Richard Robinson (14:39):

Well the other interesting thing was that there had been a number of appeals to the Supreme Court on this whole matter and the way it should be done. And the Member Whitney is obviously very much aware of that and actually tried to address all those cases because she lists all the previous cases that might be the case. And we know one of them, which we've be doing for another client, that had gone to Supreme Court has been sent back to VCAT, <still outstanding> our imagines that this decision may influence those further outcomes, but that remains to be seen.

Gaye Francis (15:07):

Alright, thanks for joining us today and we'll see you next time.

Richard Robinson (15:11):

Thanks.