The High Court found that a Health and Safety Authority (HSA) improvement notice served on Cork County Council did not comply with the Safety, Health and Welfare at Work Act 2005. The court said the notice lacked the precision required where failure to comply could carry criminal consequences.
Mr Justice Hedigan delivered judgment on 7 October 2008 in a consultative case stated by the District Court. The High Court answered questions of law arising from the Council’s appeal against a notice issued by HSA inspector Vincent D’Arcy. It did not determine the underlying appeal itself.
The dispute concerned roads surfaced with dense bitumen macadam (DBM), a temporary surface intended to be covered by a final wearing surface. HSA was concerned about the surface’s lower skid resistance and the possibility that roads could remain open to traffic between work phases. It directed the Council to prepare and revise an improvement plan addressing hazards and traffic management. The Council submitted a revised plan in November 2006, but HSA considered it inadequate and issued an improvement notice in January 2007.
The court held that the Council’s detailed revised plan amounted to compliance with the statutory direction to submit a revised plan, even though HSA considered its contents inadequate. It also found that the improvement notice largely condemned the plan as inadequate without setting out specific steps the Council had to take to avoid criminal liability. The notice was therefore not sufficiently precise. The court’s answer to whether HSA could issue a notice on the basis that a revised plan was inadequate was no.
The judgment also limited the HSA’s powers in this context. It said the 2005 Act applied to roadworks carried out by or on behalf of a local authority where work was ongoing or clearly imminent, and for the protection of workers and people present or likely to be present at the site. The court found that the notice in this case was directed principally at protecting road users from DBM surfaces after work sites had been demobilised, a purpose outside the Act’s scope. It said a road opened to traffic during a significant gap between work phases was not then a place of work under the Act.
The judgment did not rule out notices for future work: the activity must be clearly in prospect, rather than merely possible. It also said a general notice addressing a type of activity, rather than a specific instance, could not adequately specify what was required. Where an independent contractor controlled the roadworks, the local authority could not be served as the person controlling that activity. The judgment answered the referred legal questions; the source does not state the final disposition of the Council’s District Court appeal.