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The Regulatory Reform (Fire Safety) Order 2005 came into force in October
2006, but many property owners are only belatedly coming to terms
with their potential liabilities under the new legislation. Under the previous
legislation the fire brigade took a major role in supervising risk,
through the issuing of fire certificates. In practice, once a fire certificate
was issued, the property owner could be confident that the building
would thereafter be regarded as complying with current fire standards
(unless major changes were carried out).
Now, however, there is an
ongoing responsibility to constantly monitor the risk assessment, and
that responsibility falls on the ‘responsible person’ (RP). Note that the
RP can be held liable (under both criminal and civil law) for any harm that
people may suffer as a result of fire in the premises. In practice, if a fire does occur, then the defence of the RP will almost certainly centre on
the completeness and competency of the fire risk assessment (ie that
at the time of the fire the risk assessment was up-to-date, that all hazards
had been identified, that persons at risk had been identified, and
that risk management and mitigation systems were in place). But those
with experience of health and safety legislation will know that it is very
difficult to present such a defence.
It is also important to understand the significance of the requirement to
maintain an up-to-date fire risk assessment. Previously, the basic design
of a building could not be deemed inadequate if it conformed to fire
regulations when it was built (eg if a skyscraper was built to regulations
in force ten years ago, then it would normally be deemed to conform to
current requirements). But, the interpretation of the new fire legislation
could be very different; in the post-9/11 and 7/7 era, it could be argued
that it would be ‘reasonable’ for the RP to be aware of changes to
Building Regs and reduce the occupancy of floors so as to mitigate risk.
These are all potential liabilities that many RPs have yet to take on
board. Consider, for instance, the liability of LAs which have numerous
residents in old tower blocks; those LAs will now have to consider what
extra measures are required (eg smoke detection, upgrading of
compartmentalisation, carrying out remedial works).
Note that it is possible for the RP to delegate the risk assessment
procedure to a ‘competent’ person. But, there is great uncertainty as to
what amounts to competency, and mere previous experience in the fire
service is unlikely to be sufficient for dealing with complex building
structures.
The key point is for the property owners to be aware of their new liabilities
under the 2005 Regs. For an introductory article see [2006] SJ 1 December.
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