Insights Library
Development in proximity to Major Hazard Facilities: an update on how the Victorian Civil and Administrative Tribunal is handling objections from WorkSafe Victoria
On 1 November 2023, our office wrote an article about the implications of the decision of the Tribunal in Henry Trucking Pty Ltd v Hobsons Bay CC (2023) VCAT 1185 with respect to the weight to be attributed to the WorkSafe 2022 Guidance Note (Guidance Note). That article can be viewed here.
In a more recent decision of a legal Member of the Tribunal in Nasralla v Hobsons Bay CC [2024] VCAT 212 (Nasralla), a decision of a municipal council was set aside to refuse an application for a dual occupancy development, in the NRZ, in proximity to the Qenos Major Hazard Facility.
A key consideration in that decision was again the implication of the Guidance Note, including the weight that can be attributed to that document in the face of expert evidence which supports a development application from a risk management perspective. Some of these relevant comments are extracted below:
“Given that WorkSafe is not a referral authority for this permit application, and the WorkSafe Information Sheet including the Inner and Outer Safety Areas is not part of the Scheme, this has implications for the weight that can be given to the advice provided by WorkSafe and the content of the WorkSafe Information Sheet.
This is compounded by the fact that the WorkSafe Information Sheet does not take account of specific site characteristics or proposed designs, but rather, adopts a consequence based model depending on the different categories of MHFs.
Earlier, I expressed my concerns regarding the WorkSafe Information Sheet. In short, it is a blunt instrument whereby WorkSafe advises against proposals on the basis of their proposed location alone. Further, WorkSafe foreshadows via the WorkSafe Information Sheet that it may advise against a proposal in the Outer Safety Area that may set a precedent for future gradual increase in population and that this will be reviewed on a case-by-case basis. However, when WorkSafe was presented with the particulars of this case, it maintained its position of advising against the proposal, referring back to its need to approach applications with ‘the usual and appropriate degree of caution’. WorkSafe did not provide any specific reason why the proposal was unacceptable.”
[our emphasis]
The comments of the legal Member in Nasralla are explicit and buck the trend of previous decisions where the Tribunal has refused use and development applications in proximity to Major Hazard Facilities based upon the advice of WorkSafe (see for example: Bujar Pty Ltd v Hobsons Bay CC), even in circumstances where WorkSafe was not:
- a statutory referral authority; and
- a party to the proceeding such that it did not call any evidence in support of its position.
The key takeaway from the above case is that the Tribunal, through its legal division, has affirmed its position on the weight that should be attributed to the Guidance Note.
If you are considering developing land in proximity to a Major Hazard Facility and would like to discuss the above with our Planning Team, please do not hesitate to get in touch.
