Recent developments in health and safety law will affect all those involved in offshore renewables projects, which are very much in focus following the Crown Estate’s announcement of Round 3 awards in early January. However, the new rules do bring clarity and consistency for those working in the sector and bring offshore health and safety regulation in line with onshore projects.
With the level of publicity given to renewables projects, health and safety incidents may attract even more media interest than in other sectors and clients, contractors, suppliers and advisors will be keen to avoid any adverse publicity as well as possible criminal sanctions. Indeed, the Health & Safety Executive (HSE) is considering putting more resource into the small/micro end of wind generation, recognising that accidents in this sector could cause reputational damage for the whole wind sector.
Those working in the engineering and construction sectors will be aware of the challenges that come with complying with the ‘regulatory jigsaw’. Whilst health and safety law in the UK is set out primarily in the Health & Safety at Work Act 1974 (the 1974 Act), there is a swathe of regulations that have to be complied with, such as the Construction (Design and Management) (CDM) Regulations 2007 and regulations dealing with specific risks such as working with electricity and working at height.
The health and safety risks involved in the offshore wind industry include:
· ‘Normal construction risks’ such as slips, trips and falls.
· Wind energy risks such as electrocution and fire exacerbated by windy conditions, lightening, blade failures and turbine collapses.
· Offshore risks such as large waves, diving activities and working on boats/ships.
The Health & Safety at Work Act 1974 (Application Outside Great Britain) (Variation) Order 2009, applied from 5 August 2009 and extends the 1974 Act to cover the following activities within a renewable energy zone (i.e. areas outside Great Britain’s territorial sea which can be exploited for the production of energy from water or wind):
· The construction, reconstruction, alteration, repair, maintenance, cleaning, use, operation, demolition and dismantling of any energy structure or related structure, or any preparation for any such activity.
· The transfer of people or goods between a vessel or aircraft and an energy structure or related structure.
· The loading, unloading, fuelling or provisioning of a vessel.
· The operation of a cable for transmitting electricity from an energy structure or related structure to Great Britain.
· A diving project associated with any of the above works.
Orders have also been made to apply English, Welsh and Scottish criminal and civil laws (with some exceptions) to activities on, under or above a renewable energy installation (and in relation to certain electric lines) in tidal waters and parts of the sea adjacent to Great Britain up to the seaward limits of the territorial sea and waters in the renewable energy zone. This means, for example, the Corporate Manslaughter and Corporate Homicide Act 2007 will apply in the renewable energy zone.
The Corporate Manslaughter and Corporate Homicide Act 2007 introduced a new offence for prosecuting companies and other organisations where there has been a gross failing, throughout the organisation, in the management of health and safety with fatal consequences. The first prosecution under this Act went to court in 2009 and the Act is one of a number of developments that have moved health and safety higher up the agenda in UK boardrooms in recent years.
Although the 2009 Order does increase the regulation of renewable projects offshore, it will provide clarity and consistency for projects where, previously, different legal regimes applied to different sections of one project, depending on whether the relevant part of the project was within or outside the 12 mile limit. So, for example, designers of works in the renewable energy zone will have to comply with the CDM Regulations and clients will have to appoint CDM co-ordinators and principal contractors in relation to construction works.
So, what to do if an incident occurs on site? Each project should have its own construction phase plan and site rules, which will be the first port of call if an incident occurs. These documents should deal with risk identification, avoidance (or mitigation if not possible to avoid), monitoring and reporting near misses and actual incidents. Reference can also be made to industry guidance such as that produced by BWEA and the HSE’s various Approved Codes of Practice. Certain parties (employers, self-employed and those in control of premises) also have duties to report some work related incidents.
Andrew Philip is an associate in the Construction & Special Projects Group at UK law firm Shepherd and Wedderburn LLP.