The Regulatory Reform (Fire Safety) Order 2005 (the Order), made in June 2005, will repeal the familiar Fire Precautions Act 1971 and the Fire Precautions (Workplace) Regulations 1997. It will also amend, repeal and consolidate around 70 pieces of less familiar fire safety legislation. This article sets out the main changes and introduces the key new terms used in the Order.

Coming into force

The Order was due to come into force on 1 April 2006. However, the government announced in January that the Order’s implementation has been deferred, so that fire experts and businesses will have more time to familiarise themselves with the new legislation.

What premises will the Order apply to?

The Order will apply to virtually all premises, including:

• pubs, clubs and restaurants;

• commercial premises, such as offices and shops;

• care homes;

• common areas of houses in multiple occupation;

• hotels and hostels;

• community halls;

• schools;

• factories and warehouses;

• tents and marquees; and

• open-air spaces, eg concert venues.

Because the Order applies to most properties, it is easier to set out where the Order will not apply, namely:

• domestic premises occupied by a single family;

• offshore installations;

• ships and aircraft;

• fields and woods; and

• mines and boreholes.

Impact of the Order

The new Order follows the scheme of the 1997 Regulations and focuses on risk assessment and responsibility. One of the most notable changes implemented by the Order is that fire certificates will be abolished. This is because the fire authorities will no longer be inspecting and advising on the fire safety of a building. This responsibility will now rest with the ‘responsible person’.

Who is the ‘responsible person’?

In a place of work, the employer is the responsible person if they have an element of control over the workplace. In relation to other premises, the owner or the person having control of the premises will be the responsible person. For most premises it is unlikely that there will be just one responsible person. Employers, landlords, tenants, managing agents and others who have obligations under a lease, or any other contractual agreement for maintenance or safety of premises, could all be responsible persons. In such situations, the Order requires all the responsible persons to liaise together to ascertain who will be responsible for each element of the fire safety obligations.

With such a wide definition of the responsible person, it is probable that several of the above parties will, to some degree, be responsible under the Order. When acting for a purchaser or a prospective tenant, solicitors will have to ask the seller or the landlord who the responsible persons are and which of their duties will be taken on by their client.

The Order further states that the responsible person must appoint at least one ‘competent person’ to assist them. This person must have ‘sufficient training, experience and knowledge’. In practice, the competent person could be the person who is currently in charge of safety in your building, or may well be an external fire safety consultant. If the competent person is an external consultant, then it appears that some form of thirdparty accreditation should be obtained.

What are the main duties under the Order?

The duties do not appear to be too onerous at present – in practice, many of them may already be in operation in buildings. The responsible person must, amongst other duties, set up procedures to establish and maintain means of escape, provide fire alarms, extinguishers, emergency lighting, signs, and notices. They must also provide staff with training and carry out practice fire drills. Depending on the terms of the lease, landlords may be able to recover costs of compliance from tenants through the service charge.

Another of the main duties is to undertake a ‘fire risk assessment’ to identify any hazards, and to establish how best to remove or minimise them. Any findings that are made following the fire risk assessment must be recorded, along with details of any action taken. The results of the assessment and any actions taken must be monitored and reviewed ‘regularly’.

Where necessary, all employees must have access to information on the fire risks and suitable training must be provided. If there are more than five people working in the premises, if the premises are licensed or if for any other reason the ‘inspector’ requires it, then the fire risk assessment must be put into writing.

Who is the ‘inspector’ and the ‘enforcing authority’?

The inspector is normally a fire officer from the local fire brigade, and they are appointed by the ‘enforcing authority’. The enforcing authority is usually a local fire brigade, but it could also be the Health & Safety Executive, the Ministry of Defence or the relevant local authority.

To whom are these duties owed?

The responsible person owes a duty to all ‘relevant persons’ – namely, anyone who is on the premises, and even those not on the premises but who may be at risk should a fire break out. Extra consideration must be given to those who may have difficulty escaping from the building – not only to those with disabilities, but also visitors who may not be familiar with the premises, those working in remote areas of the building or those working alone.

Enforcement

Under the current legislation, the enforcing authority, along with the inspector, enforce the Order. The inspector has the power to inspect properties ‘at any reasonable time’ and, in the event of non-compliance, serve any of the following notices:

• alteration notice – a notice requiring the responsible person to make changes to remove a risk;

• enforcement notice – setting out what action is needed to rectify a breach of the Order; and

• prohibition notice – if a breach creates a serious risk, then access to premises will be restricted or prohibited.

The Order appears to be silent as to whether these notices will be recorded or registered anywhere. It would be logical that these notices should be kept with the fire risk assessment if it is in writing.

Previously, when advising on a transaction, enquiries had to be made into the existence of a valid fire certificate. Now, when acting for a purchaser or a prospective tenant, solicitors will have to ask the seller or the landlord for a copy of the fire risk assessment and any notices that may have been served.

Right of appeal

All notices can be appealed. Appeals must be made to the Magistrates Court within 21 days from the date the notice is served. If you are appealing a prohibition notice, then any restrictions or prohibitions on the premises will remain in force until the the appeal process is concluded.

Offences

Failure to comply with the main duties under the Order could result in a fine and/or up to two years’ imprisonment. The responsible person can claim that they took all reasonable precautions and exercised all due diligence to avoid committing the offence.

Comment

The current legislation remains until the Order comes into effect, so fire certificates will still apply for the immediate future. Once in force, many will find that they already comply with a majority of the legislation, but for others it may prove to be more complex. Areas of difficulty are likely to include identifying the responsible persons (where there is more than one) and splitting the responsibilities, and carrying out an effective fire risk assessment and recording and reviewing it in the correct way to avoid a penalty.

The fire authorities can advise on, but not carry out, a fire risk assessment for you. Specialist consultants who advise on the safety of premises already exist, but we are likely to see more of these emerging to give advice on how to comply with the new Order.  © Property Law Journal