About this case:

• Citation:
  HS/1/21
• Judgment:
  External link
• Court:
  NI Health and Safety Tribunal

The appellant, Anita Byrne, trading as DAY TODAY, appealed against an Order of Antrim and Newtownabbey Borough Council, the respondent, made pursuant to Section 3(1)(a) of the Petroleum Consolidation Act (Northern Ireland) 1929, and the Deregulation (Model Appeal Provisions) Order (Northern Ireland) 1997, refusing to grant a renewal of her petroleum licence for her premises at 83 Church Street, Antrim.

Factual background

The appellant operated a kerbside store with petrol filling stations. She required, by statute, a petroleum licence, issued annually from the respondent, to carry out this business. Her application to renew that licence in 2019 was refused, and that decision gave rise to this appeal.

The appellant asserted that the decision was, firstly, made in error of fact; secondly, that the decision was made in error of law, as no issue had been taken with her petroleum-dispensing methodology when her petroleum licence had been renewed each year between 2012 and 2018 inclusive, and thirdly, that the respondent had failed to properly exercise its discretion in refusing to renew her petroleum licence in 2019.

The respondent’s case

The respondent’s case was multi-faceted, relying on evidence, statute, and expert opinion, including a letter from Ms. K. Squance, an Environmental Health Officer, to the appellant. This letter was sent following a meeting between them, setting out, in detail, the concerns of the respondent and a series of recommended actions to be undertaken by her to address those concerns.

A further letter was sent by the respondent to the appellant enclosing a Consideration of Enforcement Action, offering the appellant a further opportunity to make representations thereon. In response, the applicant merely referenced the fact that this service had been provided by her, and her family, to the local community for some 77 years, but not addressing the safety concerns identified by the respondent.

The appellant’s case

Ms Byrne stated that the written evidence submitted by the respondent did not reveal any danger or fault in the site for the purposes of dispensing petroleum. She maintained that the Design, Construction, Modification, Maintenance and Decommissioning of Filling Stations, 4th Edition (the Blue Book guidance) referred only to new sites and that kerbside sites that had been in existence before 1979 could not comply with this guidance.

She stated that the occupants of neighbouring properties were notified of prospective deliveries of petroleum and that those occupants had priority in the vicinity of the site except for 15 minutes once per week when a delivery of petroleum was being made.

In cross-examination, she stated that re-fuelling of petroleum would be halted if there were any pedestrians walking on the public highway past the petroleum pump until they had passed. The appellant also maintained that there was no risk of ignition except when, if at all, re-fuelling of petroleum was taking place.

The pipe into the petroleum pump had been replaced in 2011. She confirmed that petroleum was only dispensed by attended service and that customers were advised not to smoke or to use mobile phones while re-fuelling of petroleum was taking place.

In concluding comments, she stated that the main reason she brought her appeal was in memory of her father. She emphasised again that she had a “clear record”, a remark that the Tribunal took to be a reference to petroleum having been dispensed without incident since 1943.

Findings and conclusions

Despite the many arguments raised by the appellant, the appeal was dismissed and the decision of the respondent was confirmed.

This was because the petroleum-dispensing pump, located on the public highway, along the frontage of the appellant’s premises, adjoining a neighbouring residential property, created a hazardous zone which was not contained wholly within the site boundary and the petroleum dispenser was not located at a safe distance from openings in the neighbouring residential property.

This layout was contrary to statutory regulations governing the licensing of petroleum as set out in current industry guidance. The appeal also raised issues of public safety, particularly with regard to Regulation 3 in Part 2 of the Health and Safety at Work (Northern Ireland) Order 1978.

The tribunal noted that the petroleum dispenser was against the wall between the appellant’s business premises and the adjoining occupied residential property. The petroleum-dispensing hose hung near the window of the next home.

The fact that there had been no accident in the past did not excuse the fact that suitable public safety standards should be applied in accordance with statutory requirements by reference to existing relevant expert guidance.

There was nothing in the appellant’s evidence that convinced the tribunal, on the balance of probabilities, that the installation and methodology used to dispense petroleum was safe, or that any risk assessment that had been undertaken on her behalf was suitable or sufficient for the circumstances of the case.

There was also a history of complaints from adjoining properties regarding the petroleum-dispensing methodology and the petroleum installation itself.

Ultimately, while there did exist a small number of other sites with the same petroleum delivery arrangements the appellant’s, the tribunal found, on the evidence, that none of these created the same safety concerns to the extent that existed in the appellant’s premises, due to the confined space, particularly if an emergency arose during delivery of petroleum.

The tribunal noted that while the appellant’s petroleum-dispensing business had operated for very many years, health and safety concerns generally in respect of all manner of businesses, not least that of the business of dispensing petroleum, had increased over the years.