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FIRE SERVICE AND GENERAL FIRE SAFETY TOPICS => Fire Safety => Topic started by: val on October 23, 2004, 09:05:02 AM
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Will it to be possible for a Licensing Authity to refuse to issue the new premises license, to be introduced in Feb 05, on the grounds of inadequate fire safety?
The guidance seems to explicitly exclude any conditions attached to a license if the matters are dealt with elsewhere.
Any views would be appreciated.
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The idea was that the RRO will be the only statute for fire safety in buildings in use.
I am not sure exactly how the two intereact or what happens if the licensing Act comes in before the RRO does,
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The old licensing allowed local authorities to stiuplate specific fire safety conditions in licenses (normally with help from the FB).
The RRO (at least the info I've seen) & revisions to the various Licensing laws will prohibit such local specific conditions and instead require under the Fire Safety section of the license for it to simply say - the premises shall comply with the requirements of the RRO blah, blah, blah
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So who decides when it doesnt comply?
If the LA deicedes the fire safety isn't up to scratch I think they can regard it as a breach of license conditions.
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The Licensing Authority may choose to refuse an application where it can be shown that the licensing objectives (in this instance public safety) are not met.
This need not be as a result of license conditions. Indeed as has already been indicated, the licensing authority cannot make a condition of license something which is already a requirement under other existing legislation.
Fire Authorities, however, as a responsible authority, may make relevant representations to the licensing authority notifying them of breaches of other (Fire Safety) legislation.
Having been so notified, it would be a brave authority that chose to progress and issue a licence.
This is just a personal view and ultimately it will require case law to set precedent.
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Chemo and others,
Thank you for your replies. I agree that conditions can not be set in the license, (although Section 182 guidance clearly states that plans should contain details of fire safety provisions). I am still not convinced that a Licensing Authority can, under public safety objective, refuse a license if other, more appropriate legislation applies.
Field day for licensing solicitors who, I believe, are recommending that all their clients seek a 'variation' in Feb 05.
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Now that applications are begining to cross Fire Authority desks, has anyone got examples of implementation of "Chemo on tour's" route for addressing the issue (Chemo said - Fire Authorities, however, as a responsible authority, may make relevant representations to the licensing authority notifying them of breaches of other (Fire Safety) legislation.)
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Surely the licensing authority are entitled to take a view on the fire precautions in premises subject to licensing legislation. This should be via the fire risk assessment and, if it isn't provided for example, I don't see why they cannot refuse a licence. The problem will come when the fire brigade can't make its mind up what to do - ie enforce their own legislation or let the local authority do it. This happens a lot.
Of course, if the fire brigade don't back the local authority up - it will likely be used by an applicant in any appeal.
Trouble surely looms if both parties don't work closely together! And the lawyers will then certainly have a field day.
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The Licensing Authorities have NO power to impose conditions on a license. All they can do is agree to what the licensee proposes or what one of the responsible authorities ask for. Additionally they can adopt representations from interested parties.
My FRS has taken the decison that the Licensing Act 2003 is such a pile of **** that we will, unless absolutely necessary, ask for no conditions on the license relating to fire safety. We have the WP Regs and soon, the RRO which will enable FRS to target their enforcement, (sorry friendly business advice) to those premises presenting the highest risk. The Licensing Act does though enable us to really spruce up our database with lots of new properties that we didn't know about.
Consider this, from next April and the RRO, any fire safety condition on the Premises License, (any license) becomes null and void. (Article 42, I think). Who and how then would enforcement of those conditions happen.
The posting from Crusty on another thread about the demise of FRS fire safety departments is a little premature. The RRO will provide an impetus to FRS to look more carefully at how they discharge this 'duty to enforce'. I do however agree with him/her that people who spend two years in fire safety and then leave are a nonsense.
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I've just carried out a Fire risk Assessment on a building with a license. The building is not in my opinion suitable for the numbers allowed on the license. The fire authority were consulted (some time ago) at the grant of the license - but they did not object or pass any comment. It seems some fire and rescue services know better than Parliament! Senior officers in those brigades would do well to read the Bradford City Judgement.
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1 The responsibility for ensuring a safe premises rests squarely on the responsible person (Government policy).
2. All fire officers are acutely aware of the Bradford City enquiry
3. My FRS has 10000 licensed premises and limited resources. As a fire safety officer I would love to inspect, assess, manage and enforce in each and every one of them, but without the benefit of Dr Who time travel, it is a practical impossibility.
4. We have taken the position that we will try and filter out those premises presenting a very high risk and target our limited resources at these. (Government policy).
5. Every representation made by a responsible body generates mediation (possibly illegal), a hearing, enforcement action under fire legislation, potentially an appeal and on-going monitoring.
6. Legal opinion made it clear that the absence of a fire risk assessment may be grounds for action under the fire regs but would not, in itself, be grounds for a representation under the Licensing Act 2003.
7.FRS are constantly accused of over stepping their legal powers...now we are being accused of not enforcing the law.
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I agree with PD, but would be interested to know where the statement"Legal opinion made it clear that the absence of a fire risk assessment may be grounds for action under the fire regs but would not, in itself, be grounds for a representation under the Licensing Act 2003." comes from can you advice?
And as far as Brdford is concerned that was a long time ago before responsibility was placed on employers or persons having control. The situation is now very different the FA may serve notices, the responsible person shall ensure that the legislation is complied with.
FA's will not have time or resources to scrutinise every application for a premises license.
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Policy aint law! So never mind what Gov't 'policy' might be, you won't be able to use that in your defence. Indeed, are you aware that Gov't policy is not admissable in courrt?
I don't think many fire officers have a clue about the Bradford City Judgement. I suggest you serving officers read it.
And I'm not disagreeing that you have a difficult job - but it's your Chiefs aided and abeetted by senior officers who have cut the service! However, my point is that you cannot ignore consultations from other authorities legally obliged to consult you!
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Blimey...and I thought fire safety officers had a bad name!
Yes I am aware that policy will not stand up in court but we have to take our lead from government departments that draft the laws.
I have tried to tease out what you are saying and you may be right that FRS cannot ignore information that comes their way but they do have the right and duty to act on that information in a considered way. If I sent all my FSO's round to every premises that apparently missed an extinguisher off a plan or operating schedule then the chances are that we would miss a really dangerous place.
Phil
The legal opinion was from a number of senior licensing solicitors who had been instrumental in advising the DCMS during the bill's passage. OK so they may have a bit of a vested interest but they were adamant that the lack of a fire risk assessment, if everything else was so-so would not allow a FRS to raise a representation. (Every representation, potentially, would have to be defendable in a court).
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Thanks PD.
Surely these things were ironed out during the required consultations that took place before LCs determined their policy!!
I see no problem with FAs sending standard letters to the licensing comittee making no representations at that stage stating that the employer/responsible person should have carried out a risk assessment to comply with HASAW Act & RRO.
The FA have not then ignored the consultation, but I doubt that iang54 will agree!
The comittee could then grant a license, subject to conditions. One of those conditions could be comply fully with RRO/HASAW.
FAs can then prioritise their workload accordingly.
If subsequently problems are encountered the FA could apply for a review.Where a premises licence has effect, an interested party or a responsible authority may apply to the relevant licensing authority for a review of the licence.
The authority must take such steps necessary for the promotion of the licensing objectives which may result in a license being revoked.
I think FAs would be more likely to be found guilty of negligence if they directed all their resources at licensing rather than implementing a risk based inspection program.
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I guess those of you in the Fire Service who are beginning to receive Variations to Premises Licences under the new Licensing Act have stumbled upon yet another blunder with this legislation - the applicant is not required to submit a plan of the proposed variation !
If the description of the proposal is vague enough to satisy the Licensing Authority - and it probably will be - then unless the Fire Service ask for a review (based on what ?) the Variation is likely to be approved.
For those applicants undertaking structural alterations who are not too fussy about seeking Building Regulations approval (if there's no plan we don't know what they're doing) it's an absolute doozie !
Is anyone from CFOA taking this up ?
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Under the Order the Licensing Authority will not be able to make conditions relating to fire safety. as such I dont see why they would want a plan that covers fire issues.
If it's building work then they should go through building regs. If it isnt then the Responsible person will have to adjust their Risk Assessment etc.
The only way that the Fire Service will get invovled is iether, when they inspect or when they are notified of a change if an Alterations Notice is in force.
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Mmmm...this is going to be interesting.
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Yup
The brigades will either, put clubs and pubs High in the inspection list or dish out millions of alts notices.
I think inspection would be better but I get the impression that a lot of brigades see the changes as an oppurtunity to cut resources. Dish out loads of alts notices and its covered (assuming people comply with them).
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WB - I enquired some time ago when and on what should alterations notices be served. I agree with your comment at the time (which 'Val' concurred)(see post re RRO) that they should be used sparingly on 'high' risk premises only. They will create burdonsome red tape and probably wouldn't be complied with in a large percentage of cases. You intimate that Brigades may issue them left, right and centre to 'have it covered'.
I hope a circular from ODPM will give guidance before commencement of the Order to avoid this. The principle that 'the risk is now theirs' needs to be pushed home.
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I agree but ODPM are unlikely to be so direct in their guidance.
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The principle that 'the risk is now theirs' has been true since the introduction of the WP regs. Issuing masses of alterations notices will be as toothless and time-consuming as section 8 of FPA. The only people who will comply with an alterations notice will also have complied with the rest of the Order.
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8(2) of the FPA didn't work, so I can't see that issuing Alterations Notices carte blanche to plug the gap created by inadequate legislation will work either; and an inspection programme based on the fact that premises may have carried out alterations is a long long way from a risk based inspection programme.
Hey ho ...
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I have also lost my copy of the Bradford City Fire. If anyone knows where I might obtain a copy, digital of VHS, please contact me at mikegibrn@yahoo.com
Thanks a million,
Stay Safe