Land use planning near a major hazard facility

Context

The principles of health and safety protection outlined in the Occupational Health and Safety Act 2004 (OH&S Act) and the Occupational Health and Safety Regulations 2017 (OH&S Regulations) guide WorkSafe in making decisions on planning matters.

MHFs are industrial sites that store, handle or process large quantities of particular chemicals and dangerous goods listed in Schedule 14 of the Occupational Health & Safety Regulations 2017 (OH&S Regulations). They are an essential part of the state's infrastructure, providing important products and services.

Victoria has around 40 MHFs, which must comply with strict legal requirements to reduce risks so far as is reasonably practicable.

To operate an MHF in Victoria, the facility must be registered with, or hold a licence granted by, WorkSafe Victoria. The licensing process includes the assessment, clarification and verification of a Safety Case prepared as a requirement of the OH&S Regulations. Examples of MHFs include:

• hydrocarbon processing and storage facilities
• water purification plants
• hazardous chemical manufacturing plants
• logistics companies that handle bulk chemicals on behalf of the agricultural, mining and other industrial sectors.

The types of hazardous substances handled at MHFs carry the potential for large-scale industrial incidents including petrol, ethanol, wood preservatives, industrial solvents and fertilisers. Such incidents could endanger the safety of workers in the MHF and people on land surrounding the facility.

WorkSafe's involvement within the land use planning process

WorkSafe is responsible for the administration of Victoria's Occupational Health and Safety legislation, including the OH&S Act and the Dangerous Goods Act 1985 and their associated regulations.

WorkSafe's legislation concerns protecting persons and property from hazards and risks arising from the workplace.

WorkSafe Victoria's involvement within the Victorian land use planning process is limited to responding to requests for advice on planning applications from the responsible authority — usually local councils — based on the potential impact on the health and safety of people and property associated with certain planning proposals.

There is no statutory requirement for responsible authorities to seek advice from WorkSafe on proposed use or development of land close to an MHF unless the planning proposal involves dangerous goods. However, responsible authorities often contact WorkSafe for advice under either Section 52 or section 55 of the Planning and Environment Act 1987. 

Section 52 of the Planning and Environment Act 1987 (Planning and Environment Act) allows the responsible authority to give notice of applications to WorkSafe Victoria if it considers it appropriate for the development 'which is likely to be of interest or concern to the community'. WorkSafe may provide advice to the responsible authority to inform their decision.

Section 55 of the Planning and Environment Act requires certain industrial developments to be referred to WorkSafe if specified by a planning scheme. WorkSafe assesses planning referrals to ensure that the responsible authorities are provided with clear advice in order to make decisions on applications involving dangerous goods, or development of land that may be affected by risks from dangerous goods.

In certain circumstances, WorkSafe is a 'determining referral authority' for the purposes of section 55 referrals. For example, the Victorian Planning Provisions name WorkSafe Victoria as a Determining referral authority for new developments that exceed the fire protection quantity under the Dangerous Goods (Storage and Handling) Regulations 2012. This means that if WorkSafe objects to the proposal the application must be refused by the responsible authority.

In addition, the Minister for Planning has issued Ministerial Direction No. 20 requiring planning authorities to seek, and have regard to the views of WorkSafe Victoria and the Minister for Industry and Employment, when preparing a planning scheme amendment, which rezones land for, or is within the threshold distance of, a MHF.

Land use planning Safety Areas

In order to be consistent and transparent, WorkSafe gives advice on planning decisions near an MHF. This advice is based upon its location relative to 2 Safety Areas, the extent of which has been determined by the nature of materials at the facilities.

The Safety Areas are:

• Inner Safety Area
• Outer Safety Area

Inner Safety Area

The Inner Safety Area is the area immediately surrounding an MHF where both persons and property could be seriously impacted by a high consequence, low likelihood major incident at the facility. A high consequence incident is where there is potential for injury, fatality and significant damage to property.

Outer Safety Area

The Outer Safety Area is a precautionary safety area that extends beyond the inner safety area where the consequences of a major incident are not likely to cause a fatality but persons present may suffer some injury or adverse effects or be vulnerable in the event of a very large, potentially long duration major incident.

See Safety Area Dimensions for detail.

Population sensitivity

WorkSafe has defined 4 major incident-specific population sensitivity categories to support repeatable and reproducible planning advice.

WorkSafe advice depends on having access to suitable information on the number, occupancy and type(s) of population associated with the planning decision. The information required to support planning applications is specified under the planning scheme.

Characterisation of MHF

MHFs in Victoria are placed into one of 7 categories based upon the nature and quantity of Schedule 14 of the OH&S Regulations materials handled and scale of potential consequences from incidents at site.  Where a facility could fall into more than one category, the category with the larger safety area applies.

Safety area dimensions

The dimensions of an Inner Safety Area are determined after reference to state or national emergency planning provisions, incident histories and an understanding of the nature and quantity of materials at the MHF. The extent of the Area is established on a precautionary basis and has been verified by comparison with other local and international jurisdictions.

The dimensions of an Outer Safety Area are determined on the basis of the need to identify a secondary area, farther away from the MHF, that might be impacted in the event of an extended, large scale incident where impacts could include:

• exposure to smoke which might affect vulnerable members of the community, making it necessary to close schools and hospitals for example, and might require their precautionary assisted evacuation
• a precautionary, phased evacuation of people as a result of uncertain control of a fire impinging upon a large inventory of flammable material, for example LPG
• specific atmospheric conditions which might facilitate the transport of toxic material farther than normal and for which shelter-in-place instructions are not appropriate, and or
• exposure to toxic run-off from an incident, including contaminated water as a result of a large-scale incident having breached the secondary containment measures in place at the MHF.

Safety Area dimensions

Distances are typically measured from the site boundary, however where there is a small facility footprint on a large site, distances may be taken from the facility boundary. This is consistent with a conservative approach to ensure community safety, recognising MHFs require some operational flexibility.

Where a development proposal lies across or only partially within an area boundary, generally the more restrictive of the planning rules shall apply.

WorkSafe's Advice to Responsible Authorities

Inner Safety Area

Within the Inner Safety Area WorkSafe may advise against:

• Re-zoning land in a way that could introduce population from a more sensitive population category.
• Developments that would change land use in a manner that introduces population from a more sensitive population category.
• Developments that would significantly increase, or have the potential to significantly increase, the number of people within an existing population category present at the development location.
• Developments that would set a precedent for future gradual increase in population in the area e.g. additional dwelling on the same block of land has the potential to increase population density after several developments over time.

Within the Inner Safety Area, re-zoning decisions and development applications that do not increase population of a higher sensitivity — with similar or reduced numbers — are typically not advised against, as are like-for-like redevelopments, such as a 3-bedroom dwelling being demolished and a new 3-bedroom dwelling being built.

Outer Safety Area

For proposed developments or changes to zoning within the Outer Safety Area, WorkSafe may advise against:

• land use or developments where people likely to be present are not able to safely respond to a potential emergency situation or the proposal may result in unacceptable social risk, for example, a large number of people present such as casual patrons at a health and fitness facility or students.
• Land use or developments that may set precedents for future gradual increase in population may be advised against and will be reviewed on a case-by-case basis.
• planning scheme amendments that would significantly increase the population density, and
• planning scheme amendments that would introduce specific uses that are listed in the Major incident sensitivity category of Vulnerable.

Design of buildings

Generally, Worksafe's advice does not take into account design features included within a development proposal which are intended to secure an exemption or relaxation of WorkSafe's advice to Responsible Authorities described above. This is because:

• Safety Area dimensions have been established on a precautionary basis after scrutiny of relevant major incidents and equivalent controls in other local and international jurisdictions. Many of these incidents have occurred in circumstances where equivalent controls have been implemented
• the effectiveness of some controls will diminish over time, for example a planning-phase commitment to implement and test an emergency response plan for a development is very likely to lapse, and
• where protective measures are proposed, for example, structural reinforcement, the extent of the measure required is often extremely hard to determine. For example, when modelling explosive deflagration incidents, the overpressure and phase duration (impulse), and the structural response of a building to them, are highly uncertain. Key parameters in such modelling include cloud volume, ignition energy and location, the degree to which a cloud is confined, the degree to which the flame path is congested and the type and proportion of volatilised material. The potential for fragments or debris to reach a subject location is rarely considered.

New MHFs or significant expansion of existing facilities

Under the Victorian Planning Provisions, WorkSafe Victoria can be a ‘determining referral authority’ for planning applications involving the development of new MHFs or significant modification of existing dangerous goods facilities (Clause 66.02-7). These sites are encouraged to contact [email protected] for further information.