Keeping building sites secure from the public

That building sites are dangerous is beyond contention, but equally true is that they are places of fascination for small children. The lack of understanding of risk that adults take for granted, the inventiveness at finding ways through barriers erected for their safety, and the potential for accidents involving machinery and hazardous environments are components of tragic outcomes, as happened recently in a case which involved the death of a seven-year-old boy. What happened? The child in question went missing from home on a Sunday evening and was found the next morning by workers on the construction site. An investigation by the HSE found that he had become trapped in a vertical drainage pipe sunk into the ground. The construction site was a new-build housing development next to existing housing and busy pedestrian footpaths and roads. The site was surrounded by a 6’ wooden fence, but panels next to a footpath that the boy would have used to make his way home were missing and had been inadequately covered by boards. Local people said that security patrols had stopped two weeks previously and large gates at the site entrance were removed. The HSE said that this was a combination of poor planning, management and monitoring of the site and its perimeter. The company pleaded guilty to breaching regulation 13(4)(b) of the Construction (Design and Management) Regulations 2015 and Section 3 (1) of the Health & Safety at Work etc Act 1974. They were fined £600K and ordered to pay £42,952.88 in costs. What does the law say? Regulation 13(4)(b) of the Construction (Design and Management) Regulations 2015 (4) The principal contractor must ensure that— (b) the necessary steps are taken to prevent access by unauthorised persons to the construction site; Section 3 (1) of the Health & Safety at Work etc Act 1974. It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. Civil law The company’s problems may not be over, even with this court case. They were found guilty under criminal law, but civil law, in particular the Occupiers’ Liability Act 1984 covers an occupier’s duty of care to “persons other than the occupier’s visitors” – mostly (but not always) trespassers. Under Section 1(3) of the Act, (3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk…if - (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. Section 1(4) says that “the duty is to take such care as is reasonable in all the circumstances of the case to see that he [the non-visitor] does not suffer injury on the premises by reason of the danger concerned.” In this case, the company would definitely have “reasonable grounds to believe that the trespasser is…near the danger” as the site was next to existing housing, footpaths used by children ran alongside the site and the child who died was known to have played on the site before, as had many other children. Taking “such care as is reasonable” could well apply to the state of the perimeter fence and security patrols, both of which were found to be lacking by the HSE and the court. Case law Two interesting civil cases regarding the issue of trespassers and preventative measures are Edwards v Railways Executive [1952] AC 737 House of Lords Herrington v British Rail Board [1972] AC 877 Safety measures Given the very serious consequences that could result from either a criminal prosecution, a civil case or both, what steps should companies be taking to ensure that their sites are secure? Determining the boundary is an important aspect of managing public risk. Companies will need to:

• plan what form the perimeter will take;

• provide the fencing; and

• maintain the fencing.

Questions to be asked when doing so include:

• What is the nature and type of the construction work?

• How heavily populated is the area?

• Who will need to visit the site during the work?

• Will the site attract children?

• What are the site characteristics (e.g. existing site boundaries, location, proximity to other buildings)?

Typically, in populated areas, this will mean perimeter fencing or hoarding, two metres high at least. If the fencing needs to be altered or taken down temporarily, it should be put back before workers leave the site, either for meal breaks or at the end of the day. The site gates should be locked at night, as should any other windows or doors on site. If the site is near a school or existing housing, it may be helpful to contact the head teacher or residents’ association etc. to seek their help to discourage children from trespassing. However, it should not be assumed that children will pay heed to such warnings; the boy in this case had been told frequently not to play on the building site and ignored such warnings – to his cost. Therefore, this should be only part of the hierarchy of measures taken to ensure site safety for everyone. An assumption should be made that, despite all precautions, children will get onto the site and therefore, at the end of each working day:

• All pits and excavations and enclosed spaces (including drainage pipes) should be blocked off with barriers or covered over.

• Vehicles and plant should be isolated and immobilised; if possible, they should be locked in a compound inside the site, with additional security and deterrents.

• Building materials, such as pipes, manhole rings, bags of cement should be stored so that they can’t topple or roll over onto someone.

• Access ladders should be removed from both excavations and scaffolds.

• Hazardous substances, of which there are many on a site, should be locked away

If attention has been drawn to the problem of children entering the site, security measures may also be needed. These can work in tandem with, and strengthen the effectiveness of, safety measures such as those which have been outlined above. If you are concerned about the issue of safety regarding children trespassing on your site, it is a good idea to speak to a health and safety professional, and preferably one who has access to legal advice and guidance on regulatory safety law.