Smart power | How safe is your UK renewables site?

The owner of any green energy asset has a responsibility to ensure that the site and equipment in it are safe. Safe for visitors (invited or implied), but also reasonably safe for trespassers. 

Renewables sites contain high-voltage plant and are typically large-scale, remote locations, often unmanned for long periods and existing public rights of way can make them difficult to secure. All of these factors can impact on managing the safety of the asset. 

The legal duties are covered by both criminal law and statutory regulations (for example, Health and Safety at Work etc. Act 1974) as well as potential claims for compensation under civil law. These are duties that may be delegated in terms of practical tasks, but for which liability is retained usually to some degree by the ultimate owner. Set out below is an overview of the main considerations.

Health and safety 

An employer must ensure that risks to the health and safety of employees and others who may be affected in the course of their activities are controlled so far as is reasonably practicable. For those undertaking work on a site, including contractors, the expectation is that they are competent, are briefed and will comply with an existing safety procedures. Clearly this is not always the case and it can be challenging for ultimate asset owners to ensure that those maintaining and operating plant are doing so safely. These factors can be managed and mitigated by having robust health and safety provisions in place on your contracts. 

However, in terms of site security and protecting the general public, there is less control, often limited to measures such as warning signs and the maintenance of physical barriers to deter access to hazardous equipment. Again, some of this risk can be mitigated by the use of CCTV and other monitoring methods and processes to ensure the site remains secure. Equally, in the event of, for example, damage to fencing or other barriers to access, it is important they are quickly addressed.

The tragic electrocution of a child who accessed a rail depot resulting in a health-and-safety conviction and fine of £6.5 million for its owner was a stark reminder of the consequence of not controlling risks to trespassers. The judge observed that: “In contesting this matter the company did not take responsibility for what was, on the evidence at trial, a serious and obvious failure to prevent public access to a highly dangerous environment.” While the incident did not occur in the renewable sector and concerned more accessible (in this case electrified) equipment, it does highlight the need for site owners and operators to consider the risks presented and whether those that may gain access are adequately protected.

Occupiers liability

In addition, to health and safety obligations, those in control of premises have a “duty of care” to anyone entering those premises (premises is widely defined and not just limited to buildings). Broadly an occupier is anyone that exercises an element of control over the premises and so could be an operator or the ultimate owner of a site. 

What are reasonable measures of protection against the risk will depend on the particular circumstances and the nature of the individual exposed to that risk, where children may be present (or if it is known that they have been on site), the occupier will have to guard against the risk that they will typically be less carful and less able to appreciate risks.

Consider your sites and infrastructure

An essential first step of ensuring the safety of premises is the risk assessment. This should identify the risks and help determine the precautions required. 

Measures to ensure the site is safe are likely to apply to both employees and visitors. The site, including any buildings and associated plant and equipment must be safe and maintained in a safe condition. 

At its most basic, are there trip hazards on established routes through the site? More significant hazards to consider may include:

• electrical equipment 
• whether buildings or equipment can easily be climbed on particularly where roofs are fragile;
• hidden voids;
• deep water; 
• vehicles; and
• toxic materials.

It may not be practical to secure the site and so careful consideration has to be given as to how best the infrastructure within it can be made safe and illegal access discouraged. 

Accountability and monitoring

For those working on a site, particularly those who may be first time or infrequent visitors they must be properly briefed about site health and safety. Individuals must be aware of what measures they need to follow to ensure their and others' safety and be provided with sufficient information to make an informed assessment of risks relating to their particular activity on that particular site. This requires an entity or individual with the requisite control and site knowledge to consistently take on this responsibility.

Its reasonable to delegate site security, but it is likely that the operator and/or owner will remain in control and so retain liability even if this overlaps with the duties of the contractor engaged. 

Those in control (and those who may also have responsibilities) should ensure that any incidents of unauthorised access are investigated, and this should review factors such as frequency, who is gaining access and for what reason, and whether current measures are being checked such as inspection of physical barriers. This should reveal whether further measures can be taken (in the case of the child electrocuted at the rail depot a significant aggravating feature of the prosecution was a failure to heed and so act on prior warnings. 

Osborne Clarke comment

Site security and securing equipment is challenging but, in many cases, it is just not practical make everything totally secure and completely remove the safe risk. However, the law does not require an owner or operator to guard against any possible intrusion, where liability – both criminal and civil – attracts is in circumstances where the risk has simply never been properly considered. The risk always appears obvious after the event.

This article forms part of our smart power series. Find our more about Smart Power here. 

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