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THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 => Q & A => Topic started by: kurnal on December 19, 2008, 11:44:50 AM
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Article 38 requires the Responsible Person to maintain in good repair any equipment that was provided for use by or protection of firefighters.
In my understanding this was principally intended to cover equipment provided under Building Regulations Requirement B5 but may also be used to enforce maintenance of equipment provided under some local enactments, eg sprinklers and ventilation.
Prior to the Fire Safety Order there was no such duty to maintain.
However where such equipment was removed prior to the coming into effect of the Fire Safety order, eg say a sprinkler system was originally installed under a local enactment but fell into disrepair and was removed, or a firefighting lift converted to a standard passenger lift on modernisation - say in the 1990s- can the Order be used to retrospectively require their reinstatement?
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AS far as I am aware Articel 38 requires that maintenace should be provided for all those things you mention. Certainly in respect of the London Building Acts and some other local acts that followed this piece of legislation there were maintenance clauses and these will fall under Art 38 even though in some cases the local act has been repealed or revoked as the wording od the article covers these issues.
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Prof
IMO
None of the articles are retrospective
Under Article 38 you must maintain both existing and new since day one of the RRO
If however your FRA finds deficiencies or a need to adapt to technical progress that is a different matter
The fact that someone failed to maintain under the local acts may or may not be pointed out but they got away with it or did not appreciate the requirement
I'm thinking of a certain hydrant........... :'(
davo
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Thanks for your replies so far.
But the case I have in mind is slightly different. The sprinklers and / or lift were originally installed but then fell into disrepair and were decommissioned / removed / disconnected long before the fire safety order was dreamed of. I have one case now where article 38 is being quoted for a sprinkler system that was partially dismantled and removed in 2003, and another possible case where a firefighting lift was converted into a normal passenger lift in the late 1990s. So the systems and facilities were not there in the years leading up to the passing of the Fire Safety Order. Reinstatement will mean new installations. this is far beyond maintenance? The Fire Safety Order has no provision for reinstatement. I wonder if there is a legal definition of maintenance?
Davo the hydrant you refer to is still physically there even though it may emit nowt but a trickle. So its similar but different. As its there you could be expected to maintain it even if this may mean replacing the water main. But if you had taken it out before the FSO came into force, I dont think you could be required to reinstate it?
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Kurnal, were they there under a local act, and if so, was as part of that act some maintenance requirement? I think that, if that is the case, then the local act would still apply for maintenance even though the act may have been repealed or revoked. That may then bring it into the scope of Article 38, the true test would be to speak to the local authority and see if they are going to pursue the maintenance if such a thing existed.
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Those managing the building were probably required to maintain their safety kit under general H&S legislation pre-RR(FS)O. By installing it in the first place they demonstrated that it was ALARP to do so, so I can't imagine what the justification for removal might have been. Poor maintenance certainly isn't an excuse!
In any case, if the Lift / Hydrant / whatever had been provided once and if current standards suggest that they would normally be provided in that premises then there might be a strong argument that they should never have been got rid of and they should be reinstated, unless it can be argued that fire risk in that premises is significantly lower now than it was when they were installed, for some reason?
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The whole "protection of firefighters" issue is where it gets messy.
Most of the firefighting kit in a building isn't there for protecting firefighters but for the safety of the occupants of the builing. A rising main/firefighting shaft, for instance is there to help firefighters carry out rescues and thus protecting occupants.
A lot of people seem to think that Local Acts are there to protect firefighters. However, unless you know different, it doesnt actually say it anywhere and theres no evidence that this was ever the intention.
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Jokar- Some of the local enactments have provisions whereby at the time of passing the plans, on consultation with the fire authority conditions could have been imposed requiring the maintenance of whatever was provided. I have no records to show whether conditions were imposed at the time the building was erected in 1956. If no conditions were imposed for maintenance my judgement is that reinstatement of the sprinklers would not be enforceable. We will have to call the authoriities bluff to know where we stand for sure.
Fishy- The building was erected 52 years ago for another company. The current occupiers took it over in 1978. It is a storage warehouse and always was but we do not know what was stored there and the storage mode. The building did have an OH3 system installed at the time with a single source of supply from the towns mains. What was reasonably practicable for one occupier may not be for another?
For the category of goods and the current storage modes it I calculate it would require a HHS system D/D 7.5mm over 260sq m AMAO. So even if it were still operational it would not be up to the job. So actually the risk is now higher and it would need a completely new system with stored water, a pumphouse and dual pumps.
Wee B the protection of firefighters is an interesting issue and whilst we know that firefighters are not relevant persons in terms of general fire precautions, article 38 does use these words. The local Acts that I have seen just refer to " reducing the danger from fire in the building". As it can be forseen that firefighters will respond and enter buildings on fire is it reasonable to assume that they fall under this sweeping objective?
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wee b, while it is a subtle point, Article 38 refers to equipment FOR USE BY FIREFIGHTERS AND FOR PROTECTION OF FIRE_FIGHTERS. That defines the equipment we are talking about. I dont agree that the provisions of local acts was simply for safety of occupants. The compartmentation was to prevent an unconfined conflagration that the fire brigade could not control. The alternative of sprinklers was therefore for the same purpose. DRMs are for use by the fire brigade. The issue is then whether their maintenance is necessary for the safety of fire-fighters. Inevitably, it will contribute to this.
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And to add to that, 'general fire precautions' includes 'measures to reduce the risk of spread of fire', which could easily be taken as compartmentation/sprinklers. So, depending on the locality of the premises to other buildings and relevant persons, it could potentially enforced under article 8 rather than article 38.
Really, the removal of the system should have been subject to a building regs submission. If it has past the time that building control can deal with it then the FRS have to do something. If the premises requires a sprinkler system to be safe and for some technical reason (Mr Todd, you chip in whenever you want here) we cannot enforce it, then prohibition/restriction would be the last viable option.
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Agree with most of that Civvy. But there can be no queston of prohibition or restriction because it is only as a result of a local enactment that sprinklers were installed in the first place.
There are thousands of much bigger and higher risk warehouses all over the country both existing and even being built today 20 times the size of this one with full building Regulations approval without sprinklers and ventilation, because they are in areas not subject to local enactments.
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No, in my opinion Art. 38 isn't enforceable in this instance. It's what I call a "catch 22(a)" situation because its something that could be argued eitherway and when done so throws up additional questions / theories / possible outcomes. It would need a test case to show where the land lies.
Someone mentioned using article 8 as a sneaky way of retro enforcement in this instance, but frankly that would be a bit cheeky, and something reminiscent of the Bluff and Pursuasion Act
The old local acts that required these provisions in the first places are revoked / repealled so can't be used, and the RRO isn't retrospective in one sense but your risk assessment should identify any naughty areas which need action. so unless your RA requires it and the FRA can't argue otherwise the argument is academic to a large degree. But to answer your question if a fire authority did try and enforce it they'd be on dodgy ground I think
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Colin, good point, but the Paragraph in question starts with "where necessary in order to safeguard the safety of fire-fighters in the event of fire..." so that narrows the scope of Art 38 to firefighter safety.
I've never been entirely happy with the way this article is structured, I think somebody could play fast and lose with it and maybe get away with removing firefighting kit from the building (that should be there).
I guess it's still better than what we had before.
I've just had a dig through my collection of local Acts, It appears that the maintenance provisions were not repealed by the Order so any conditions made under them should still be enforceable.
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Agree with most of that Civvy. But there can be no queston of prohibition or restriction because it is only as a result of a local enactment that sprinklers were installed in the first place.
I guess the answer there is quite simply, "Does a risk assessment show that sprinklers are not required?" (And not the sort of risk assessment done with the raw intention of proving the sprinklers are not required, but a proper one.)
As I am sure you are aware, the RRO does cover maintenance of measures installed by repealed/revoked enactments, both for general fire precautions (Only where it is necessary to protect relevant persons though) and measures for firefighters. Due to this, the reasoning behind the enactment under discussion is probably something worth investigating. Might it be in an area where FRS cover is poor? Could it be tied down to "general fire precautions" or "measures to protect firefighters"? Was it just a bit of reactionary legislation done on a whim? What is the local FRS's opinion on new warehouses in the same area now the enactment is repealed?
The firefighting lift example would be an interesting topic for discussion as that is something that was probably initially installed under building regs, which IMO article 38 has a reasonably clear link to and RRO guidance note No. 1 is quite clear. I would argue that the lift was required as a measure to protect firefighters, the removal of it means that it is not now in efficient working order, and as such it should be maintained in working order, which would warrant its reinstatement. Enforcement notice on it's way, appeal if you want... >:(
(A bit of devils advocate going on here, as I appreciate things are not quite that simple :))
Fire away....
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Thanks for your help Civvy. Some of these issues are lost in the mist of time and this forum is often the only available sounding board.
The lift is easily dealt with. I came across it on a risk assessment and told the RP to bring it to the attention of the fire service and the lift maintenance company. The fire service have been contacted and aren't concerned- the building has only one floor above 18m. Job done.
The warehouse is a different matter and its down to those dratted local enactments - most of which are still in force despite the RR(FS) Order which embraced some elements of local enactments- eg neon signs, but left in place many other local ennactments - including some that controlled large storage buildings greater than 7000m3 (ie tiny by todays standards) and control of stacks of combustible materials. A recent determination by the secretary of state showed these elemnts of the local enactments to be very much alive and kicking. As you say, some of these incorprorated provisions for maintenance, others did not.
As you suggest it comes down to the risk assessment - my risk assessment of this fairly small warehouse of about 10000m2 (used for the storage and distribution of government publicity materials in the main) is that for life safety of relevant persons there is no requirement for a sprinkler system. Why? Because in determining a benchmark level for ALARP I used the relevant documents and guidance including BS5588 part 11 (relevant at the time of the assessment), the fire certificate standards (formerly in force under the previous regime) and the new National Guidance for Factories and Warehouses. I also referred to ADB though this is clearly not relevant in the case of existing buildings, but is a benchmark for new buildings.
I did point out the benefits of sprinklers but also pointed out the difficulties involved in recommissioning and upgrading this long decommissioned system.
So far the brigade has visited and issued a letter of non compliance (which the client thought was an enforcement notice). The letter requires that the sprinkler system be reinstated within 3- 6 months. This may or may not develop into an enforcement notice later. Time will tell.
The crux is this. In carrying out a fire risk assessment under the RR(FS)O the duty is to reduce the risk to relevant persons to ALARP. But what does this mean? The document "Reducing Risks, protecting people" published by the HSE recognises that for existing buildings it is appropriate that best practice guidance should be used as a benchmark, rather than the legal judgement arising from the case of Edwards Vs NCB (quantum of risk measured against sacrifice).
Quoting from the document
"....Moreover, HSE believes that in making this compliance assessment, the starting point for
determining whether risk has been reduced as low as reasonably practicable, should be the
present situation in the duty holder’s undertaking. However, in certain circumstances, it will
not be possible to assess options in this way. In such situations, the starting point should be
an option which is known to be reasonably practicable (such as one which represents
existing good practice)........"
We have best practice guidance with national coverage. In some areas we have local enactments that prescribe different standards of fire safety for different purposes. My view is that Article 38 should not be used to enforce local enactments.
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Kurnal, I am interested in the letter of non compliance. Non complinace with what, sprinklers were specificall excluded from the Order because of the fears of the stakeholders that formed the legilsation that FRS would seek to make people put sprinklers into every premises. Is this where this thread started? What are they trying to protect in this instance and achieving at this moment. is they believe that it is that much of a risk surely they should prohibit the use of the premises until the sprinklers are up and running and quite obviously the life safety means of escape are inadequate without this added protection!
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Thanks Jokar.
The wording is as follows (extracts only)
Following an audit.....the following requirements of the order have not been adequately met and should be addressed in your fire risk assessment. A time specific corrective action plan should be produced to address the followingduties that are statutory requirements of the Order.
The Responsible Person must ensure equipment and devices for use by, or for the protection of Fire Fighters are maintained in an efficient state, in working order and in a good state of repair (specifically the Sprinkler System) (Article 38(i))
..........As a guide ....the work should be completed within 3 months........A further visit will be made on or after 1 March 2009 to ensure that the requirements of the schedule have been carried out.
I must stress that means of escape are appropriate and the sprinklers were only ever installed as a result of the local enactment in respect of storage buildings larger than 7000m3 which only apply in a few areas of the UK. Under latest design codes- BS9999, ADB 2006 etc this warehouse would be deemed satisfactory without sprinklers if it were built 1/2 mile down the road in the neighbouring county.
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Kurnal, look at guidance note No.1. To enforce article 38 is is still expected to be proven that relevant persons are protected. (Although it does say in the same paragraph that this will almost always be the case)
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I think I may be tempted to utilise BS 9999 as a risk assessment methodology and see what it comes up with. It may not be your normal approach but it can be used for existing premises and it is a British Standard. I would then do a comparison with what I had before and ask the question of the FRS of what they actually are trying to achieve.
However, as I have stated earlier some local enactment provisions for maintenance are still there and I suppose you would have to risk assess away the sprinklers as unecessary under ADB or BS 9999. Its strange isn't it as both documents include sprinklers for life safety only, not for fire fighter safety. Bearing in mind that firefighters are not relevant people under the Order and the only offences in Art 32 are against relevant people I think that the FRS are blowing hot air.
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Jokar/Prof
Forgive me if I am wrong as I am at home, but surely the BS is not yet in force as it were? ???
davo
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BS 9999 was issued in October 2008, I think the 16th from memory.
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Bearing in mind that firefighters are not relevant people under the Order and the only offences in Art 32 are against relevant people I think that the FRS are blowing hot air.
32. —(1) It is an offence for any responsible person or any other person mentioned in article 5(3) to—
(d) fail to comply with any requirement imposed by an enforcement notice;
The 'relevant persons' argument is invalid regarding enforcement notices.