Transfer of Prohibition Notices

[zimmy]

I would be grateful if anyone could clarify a legal point regarding Article 31 notices.

As the notice is served on the responsible person, what is the status of the notice if the responsible person changes? Does the notice legally transfer also, or do we have to withdraw and re-issue? This seems to be unworkable as premises change hands often and we would never keep up. If it changes legally, could I be pointed in the direction of where it says so?

many thanks

[afterburner]

Zimmy,  this will probably not help you in the slightest, but I'm not up to speed on the RRO. However the Fire (Scotland) Act seems to have different wording: - "an enforcing authority may serve a prohibition notice on the occupier of the relevant premises". The transfer would therefore operate to the 'occupier', who (under the Scottish legislation) may not be the 'responsible person'.
OK it doesn't help but it may be interesting.

[nearlythere]

I would think Zimmy that if you issued a notice to a named RP and he/she left you would have to re-issue to the new RP.  The previous one would no longer be the owner/occupier/employer and would have no responsibility with the undertaking any more. I would think that any notice which did not have the correct information would not stand up in court.
Know the trouble there is with trying to prosecute the responsible person or persons for the Rosepark incident. The company does not exist anymore. For now anyway.

[PhilB]

It is an offence if any person fails to comply with a prohibition notice....it matters not a jot if they are the responsible person or not. Article 32(2)(h) refers. There is no need to re-serve it.

Under the 71 Act there used to be a defence available if the person could prove that they did not know that the notice was in existance...that defence is no longer available.

The only defence available now is one of due dilligence under article 33.

[zimmy]

Phil, many thanks for the definetive reply and thank you to the other respondants also.

I suppose it would do no harm to remind any premises periodically that an Article 31 exists which would wipe away any possibility of a due diligence defence.

Thanks again

[PhilB]

Absolutely Zimmy

You would expect that because the risk is so serious that periodic checks will be made to make sure that it isn't being used.

 It would be a good idea to remind anyone who may be there that a notice is  in force and the consequences of using the premises in contravention of that notice....give them a copy if you wish...post a copy in some conspicuous place but there is no need to re serve it. As you correctly point reminders will tend to blow away the defence of due dilligence.

[nearlythere]

Absolutely Zimmy

You would expect that because the risk is so serious that periodic checks will be made to make sure that it isn't being used.

 It would be a good idea to remind anyone who may be there that a notice is  in force and the consequences of using the premises in contravention of that notice....give them a copy if you wish...post a copy in some conspicuous place but there is no need to re serve it. As you correctly point reminders will tend to blow away the defence of due dilligence.

Would it not be appropriate to provide a copy of the Prohibition to the premises owner and/or leasing agent? The RP who received the prohibition notice could have been a tenent employer.

[CivvyFSO]

It is an offence if any person fails to comply with a prohibition notice....it matters not a jot if they are the responsible person or not. Article 32(2)(h) refers. There is no need to re-serve it.

The notice will be served on the RP. If that RP or owner changes then surely there the whole validity of the notice could be questioned?

I was thinking in a similar vein to how we would re-issue an enforcement notice if the RP changed, but the difference there being it is only the RP who has to comply with the enforcement notice. Is it not a grey area?

Appreciating your general 'cleverness' regarding this sort of issue I am not challenging, just asking..

More generally, if a premises has been prohibited and I decide to go and set up an office/workshop/brothel in it with no knowledge of the notice, even if I could claim that I had no possible way of knowing the premises was prohibited, the fact remains that I am running a business in a dangerous place and even without the notice there is a damn good chance that I am committing an offence under article 32(1)(a).

[nearlythere]

Can  a prohibition notice not also be served on any person who to any extent has control etc etc? Art 5 (3).

[CivvyFSO]

Yes it can.

the authority may serve on the responsible person or any other person mentioned in article 5(3) a notice

We still have a notice that is served on a RP or any individual, and as such when that person is no longer the RP, or no longer has control, I would try argue that the notice is no longer valid. (If I were the one being accused of course)

[PhilB]

But the offence provisions have been written differently for prohibition notices and enforcement notices for that very reason.

Only the responsible person or a person who has to some extent control can commit the offence of failing to comply with an enforcement notice. So you may have to serve a new enforcement notice if the occupier changes.

Prohibition notices are different.

It is an offence for ANY PERSON to fail to comply with a prohibition notice.

I take your point Civvvy that if a person is using such a premises they are also likely to be committing an offence under article 32(1) but you would also need to prove that persons were being placed at risk of death or serious injury.

Failure to comply with a prohibition notice is an offence in its own right so there would be no need to also prove that persons had been placed at risk....just that the premises was being used when that use was prohibited.

And yes Nearlythere... it would be appropriate to provide a copy of the Prohibition notice to the owner and/or leasing agent and hopefully a competent enforcing authority would do just that.

[nearlythere]

If a PN had been served on the RP and he/she moves on and the PN is not acted upon because the new RP did not know about it, who would be prosecuted?

[PhilB]

How do you mean the PN has not been acted upon? The PN will restrict/prohibit the use so if it is being used the notice is not being complied with.

any person who contravenes the notice could be prosecuted...but the enforcing authority would need to do some investigating to make sure there is no defence of due dilligence.

[Bruce89]

Once a PN has been served it is not just a case of forgetting about it. It's normal practise to carry out regular visits to check compliance. If during one of these visits it becomes apparent that a change of RP has occurred, simply withdraw and re-serve on the new RP if still necessary and then attempt to get the standard raised thereby enableing the withdrawal of the Notice, why leave in doubt the legality of the original Notice and whether or not it is still valid, the re-serving is a simple process.
Failure to comply with a PN is an offence in its own right as PhilB states quite rightly, however, it still has to pass the evidential test and the public interest test, I would suggest that any half decent brief would have something to say on behalf of his client in both of these respects should a FA attempt to prosecute someone other than the RP who the original Notice was served on.

[messy]

I recall being told by LFB's legal Dept that it's (or was in 2006) London policy that once a PN has been issued on an address, it would not be cancelled.

Of course the conditions attached would be relaxed to allow reoccupation, but for legal reasons it was planned (although I am unsure whether it is still policy) to keep the PN 'live'. I believe it is so that conditions can be re introduced without the need for the huge palaver that goes with issuing an article 31 notice.

Not exactly a good selling point when attempting to sell the property when the PN comes up in the searches 10 years after the offence!