A dispute between Cork County Council and the Health and Safety Authority, arising from the authority's concern about the safety implications of extended use of a type of temporary road surfacing, has opened in the High Court.
The HSA had expressed concern to Cork County Council and other local authorities that dense bitumen macadam (DBM), a temporary road surface to be covered by a wearing surface, had lesser skid resistance and that it was being used by traffic during roadworks.
It expressed concern about the lapse of time which might occur between the laying of a DBM surface and the subsequent laying of a permanent wearing surface and had argued Cork County Council should comply with health and safety regulations while road works were being carried out.
In an improvement notice served on the council last January, the HSA expressed the opinion that the council had failed to comply with directions under the Safety, Health and Welfare at Work Act 2005 and required the council to take particular measures to address the situation. It claimed control measures proposed by the council to deal with the use of vehicles on temporary road surfaces were inadequate.
In what is regarded as a test case, Mr Justice John Hedigan is being asked to determine issues of law relating to whether the safety Act applies to local authorities and what powers, if any, the HSA has in directing a local authority on matters concerning the performance of its duties.
The proceedings arose after Cork County Council was served on January 24th last by the HSA with an improvement notice, requiring that action be taken under section 66 of the Safety, Health and Welfare Act to address safety concerns over the use of DBM over time for surfacing for temporary road works.
The council appealed the improvement notice to the District Court where Judge David Riordan was told the HSA had served similar notices on other road authorities. Judge Riordan was also told that the appeal brought by Cork County Council was the first of many.
The judge was told that, within the county council area, any "stretch of road" with a DBM surface had works which were active and ongoing.
The council has said it no longer has a practice of carrying out roadworks in two distinct phases, one where the road is first dressed with DBM and two, where it is fully surfaced dressed. However, such a practice is carried out in other areas, the District Court heard.
The District Court found such a two-stage process resulted in DBM being left on the road and moved for significant periods of time before the road was surface dressed.
Judge Riordan has referred more than a dozen questions of law to the High Court for determination. The case is expected to last for three days.