APPENDIX 2
Memorandum submitted by the Health &
Safety Executive Northern Ireland
Thank you for your letter dated 8 July 2003.
In response to the questions that you have raised,
I would advise as follows:
1. I assume that your reference to "authorisation"
is a reference to planning consent or a reference to registration
for the purposes for the aggregates levy. Under quarrying-related
health and safety legislation, HSENI do not perform any authorisation
role. Quarry owners are required to notify HSENI when quarry activities
are commenced, abandoned or recommenced under Article 16 of the
Quarries Order (Northern Ireland) 1983. This is a notification
procedure only.
During the course of normal field operations,
HSENI has observed a number of sites for which it had not received
any consultation papers from the Planning Service for Northern
Ireland. It is assumed that these sites are operating without
formal planning consent.
Our field intelligence on the full extent of
unauthorised sites is however very limited. As a result of some
recent additional field observations conducted as a result of
your inquiries, we have identified over 20 sites that we had not
been previously aware of either by notification to HSENI or through
consultation exercises with the Planning Service. The sites that
we have identified through our field observations range from very
small operations consisting of a single excavator removing low
grade aggregate from rock outcrops to larger scale activities
consisting of mobile crushing and screening plant and a range
of associated vehicles.
We are not in a position however to confirm
if there has been any increase in the unauthorised extraction
of aggregates as a direct result of introducing the aggregate
levy.
2. We are unable to estimate the level of
unauthorised extraction of aggregates that has taken place since
and prior to the introduction of the aggregates levy.
3. For sites that are officially notified
to HSENI, and permission sought through the normal channels of
planning approval, HSENI does have the opportunity to advise the
site operator on the relevant legal requirements, assess the level
of compliance and take relevant action if appropriate. This intervention
to assess and secure compliance is obviously easier for sites
that we are made aware of through the normal notification/approval
channels.
In considering the health and safety issues
that unauthorised extraction may raise, we have not been made
aware by the PSNI that the high-risk activity of blasting is taking
place at these sites.
Our limited experience to date with a number
of these sites has indicated that some common problems do exist
and these include the absence of appropriate risk management systems,
plant not maintained in a safe condition and site development
not planned in a safe manner. Other safety issues encountered
in recent times include unguarded dangerous machinery, vehicles
operating without brakes, dangerously high faces and lack of adequate
perimeter fencing to protect the public.
Although standards are likely to be lower in
many "unauthorised" operations, with our limited experience
with these sites, HSENI does not currently have strong conclusive
evidence to correlate adverse differential industry safety standards
for unauthorised extraction activities and the non-payment of
the aggregate levy.
4. The general strategic approach by HSENI
to quarry safety in Northern Ireland is essentially based on prioritisation
of risks within the industry and our aim is to tackle the most
pertinent risks through a range of promotion and enforcement interventions.
Over recent years these interventions have included routine and
focused inspection campaigns (eg on machinery guarding) and promotional
events to raise awareness of standards, legislation and best practice.
Since the introduction of the aggregates levy
in Northern Ireland, HSENI as a health and safety regulatory authority
has not been routinely proactive in seeking to identify and distinguish
sites that may be involved in unauthorised extraction of aggregates.
It has been our approach to inspect all quarries as we encounter
them as part of our normal field operations and to apply the health
and safety legislative standards as appropriate.
5. It is assumed that from a purely volume
perspective that any increase in unauthorised extraction will
result in reduced extraction volume from authorised sites and
vice versa. Any balancing between authorised and unauthorised
activities as a result of the levy factor essentially equates
to no net gain in terms of overall extraction volumes. In such
circumstances we would not envisage any significant impact relating
to the resource needs of the health and safety regulatory system.
In your request to speculate therefore on any
resource implications for HSENI as a result of future increases
in aggregate levies, we do not currently envisage any significant
increased HSENI resource implications arising out of future levy
changes in the industry.
6. HSENI are a statutory consultee in relation
to planning applications for quarries. We routinely liaise with
the Planning Service for Northern Ireland on quarry consultations
and share intelligence as necessary.
Our inter-agency working is therefore focused
on our working arrangements between HSENI and the Planning Service
for Northern Ireland. We cannot comment on the enforcement role
performed by the Planning Service in relation to the enforcement
of planning legislation.
HSENI is not in a position to identify all sites
involved in unauthorised extraction. It is assumed that even for
planning approved sites, there is also the potential for unauthorised
extraction for avoidance of levy payment. HSENI would not be in
a position to identify if levy is being paid in any such case.
7. In enforcing health and safety at work
legislation, it is essential that robust evidence can be obtained
that persons are at work and that proof of work status
can be obtained. With unauthorised extraction activities, it is
envisaged that there may be potential legal difficulties relating
to the question as to whether it is permissible for HSENI to mount
prosecutions for dereliction of statutory duty by employers where
the employment relates effectively to illegal activities. We envisage
difficulties in enforcing the health and safety statutory provisions
in such circumstances.
In general terms there are a broad range of
penalties that may be imposed by the courts in relation to health
and safety matters certainly for legitimate quarries. These obviously
depend on the specific offence and the court in which the matter
is dealt with. A list of the main legislative provisions relating
to legitimate quarries is attached in annex 1.
The maximum penalties for breaches of duties
under the Health and Safety at Work (Northern Ireland) Order 1978
are an unlimited fine or six months' imprisonment, or both when
dealt with in the higher courts. In practice however the actual
penalties imposed for quarrying activities are much lower, and
are typically in the region of £100 to £2500 for serious
breaches.
In the undertaking enforcement work, we are
mindful of both the potential enforceability difficulties relating
to unauthorised extraction activities and also for the need to
preserve the safety of our staff.
On a broader front, it is not known if there
is direct or fringe criminal and/or paramilitary involvement with
any of these activities that may warrant interest or intervention
from other authorities.
8. It is the view of HSENI that your very
legitimate concerns over levy payment issues are a very distinct
and separate matter to the subject of health and safety regulation.
We do not believe that the logical way to progress a levy payment
strategy is necessarily through a health and safety enforcement
strategy.
It is our view that any investigative and enforcement
functions necessary for the regulation of aggregate levy payment
should be the responsibility of an authority that is dedicated
and authorised for this purpose.
I trust that this information is of assistance
to the Committee. Please do not hesitate to contact me should
you require any further information.
Bryan Monson
Head of Quarries Group
Annex 1
LEGISLATION APPLYING TO QUARRIES
Quarries (Northern Ireland) Order 1983 (SI 1983/150
(NI 4) (This is an existing statutory provision of the 1978 Order.
Penalties are as set out in that Order).
Mines and Quarries (Tips and Tipping Plans)
Regulations (Northern Ireland) 1995 (SR 1995 No 296)
Quarries Miscellaneous Health and Safety Provisions
Regulations (Northern Ireland) 1995 (SR 1995 No 378)
Quarries (Metrication) Regulations (Northern
Ireland) 1992 (SR 1992 No 216)
Quarries (Explosives) Regulations (Northern
Ireland) 1991 (SR 1991 No 233)
Mines and Quarries (Repeals and Modifications)
Regulations (Northern Ireland) 1980 (SR 1980 No 333)
The Regulations above (made from 1980 onwards)
were made under the 1978 Order—penalties are those for non-compliance
with health and safety Regulations.
Quarries (Returns and Records) Rules (Northern
Ireland) 1963 (SR & O (NI) 1963 No. 41)
Quarries (Safety, Health, Equipment and Explosives)
Rules (Northern Ireland) 1962(SR & O (NI) 1962 No 180)
The Regulations above were made, or have effect
as if made, under the 1983 Order—penalties are the same
as those for non-compliance with health and safety Regulations.
The following table is taken from the Great
Britain ACoP on Quarries. It lists the non-quarry-specific legislation
most relevant to quarries. There are Northern Ireland equivalents
to all the items listed.
Health and Safety at Work, etc Act 1974
Management of Health and Safety at Work Regulations
1992
Provision and Use of Work Equipment Regulations
1998
Control of Substances Hazardous to Health Regulations
1999
Workplace (Health, Safety and Welfare) Regulations
1992
Manual Handling Operations Regulations 1992
Personal Protective Equipment at Work Regulations
1992
Noise at Work Regulations 1989
Confined Spaces Regulations 1997
Lifting Operations and Lifting Equipment Regulations
1998
Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 1995
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