We all know we should have disaster recovery procedures in place, but it takes an event like the Buncefield explosion to make them a priority
The Buncefield explosion was colossal – the blast registered 2.4 on the Richter scale, followed by the largest fire of its kind in peacetime Europe. Three and hundred and fifty neighbouring businesses had to flee their premises.
The investigation by the Health and Safety Executive is likely to be the most wide-ranging of its kind since the Potters Bar rail crash in 2002. The explosion is estimated to have cost £200m, including £100m damage to the depot, £20m of lost fuel and £50m damage to the industrial estate. For the construction industry, the explosion provides a wake-up call in respect of disaster recovery and health and safety matters.
In the wake of the Buncefield disaster, the CBI has called on companies to assess their business risk and improve continuity planning. One of the measures that the CBI advocates is to back up data regularly to another location.
For contractors, this also applies to documents such as health and safety files and asbestos registers, which are usually kept on site for easy reference. However, at Buncefield, some buildings were so severely damaged that they were too dangerous to enter to retrieve the health and safety file.
Here lies the problem. When attempting to repair or demolish a damaged building, the construction team will need to consult the file on structural and building matters. The building owner has a legal duty under the CDM regulations and the Control of Asbestos at Work regulations to provide the information contained in the health and safety file and the asbestos register. If either has been destroyed, then the owner or occupier has to try to reassemble the information, for instance obtaining drawings from structural engineersand architects, before being able to carry out the work. This costs time and money. If they go ahead without the information and people are injured because it is missing, they run the risk of prosecution by the HSE.
These problems can be overcome by some simple planning. Ensure that someone else, such as the developer or owner’s lawyers, keeps a copy of the health and safety file. The HSE only advises that the file be “kept available for inspection on the premises to which it relates”, and although it mentions storing the file electronically or on microfiche it does not suggest keeping a copy of the file at a separate site.
Buncefield has also highlighted the risk of damage to nearby buildings under construction. The developer and the contractor need to agree and set out how the responsibilities for any damage and delay are apportioned and insured. The developer should consider insurance that covers the delay in starting up and running from the time the building was originally intended to be completed until the time it is actually completed. If the insurance is not taken out, the cost of rebuilding may possibly be covered by the developer’s or contractor’s own insurance, but the prolonged period for rebuilding will not. If there is no insurance taken out, the developer will be relying on whatever can be recovered from whomever caused the damage. The latter is a costly and drawn out process that should be avoided if possible.
Construction companies also need to be aware of the effects on the operation of their own offices – Sir Robert McAlpine’s offices were disrupted by the Buncefield explosion. What should they do in the aftermath of the event? Have the continuity plans been reviewed and tested? Have staff been trained to execute the plans? What other locations can the organisation use? Is there business interruption insurance that would cover the event?
Most of these health and safety and insurance matters can be resolved through proper planning, but the Buncefield disaster has also led to calls to tighten planning law so there is less risk of depots and other high-risk facilities being situated in densely populated areas.
It is too early to speculate what, if anything, will come of this but it is hard to see how it can be achieved when there is such pressure for mixed-use development on brownfield sites.
It will be interesting to see what proposals, if any, are issued by the ODPM in the coming months.
Michael Conroy Harris is head of the construction unit at Laytons Solicitors. firstname.lastname@example.org