Is Decommissioning a Firefighting Lift in Unoccupied Building an Offence Art 38?

[Messy]

Article 38 requires the Resp Person to maintain any kit 'for the use by firefighters'..... I would expect that to include the firefighting lift where one is required.

A building owner is planning to mothball a 20 storey building, which he later (5 years or so) intends to redevelop. The building will have no occupiers during that period other than visiting maintenance workers and security staff.

He also intends to decommission all lifts - including firefighting lifts.

Is that an offence under Article 38??


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Maintenance of measures provided for protection of fire-fighters

38.?(1) Where necessary in order to safeguard the safety of fire-fighters in the event of a fire, the responsible person must ensure that the premises and any facilities, equipment and devices provided in respect of the premises for the use by or protection of fire-fighters under this Order or under any other enactment, including any enactment repealed or revoked by this Order, are subject to a suitable system of maintenance and are maintained in an efficient state, in efficient working order and in good repair.

(2) Where the premises form part of a building, the responsible person may make arrangements with the occupier of any premises forming part of the building for the purpose of ensuring that the requirements of paragraph (1) are met.

(3) Paragraph (2) applies even if the other premises are not premises to which this Order applies.

(4) The occupier of the other premises must co-operate with the responsible person for the purposes of paragraph (2).

(5) Where the occupier of the other premises is not also the owner of those premises, the reference to the occupier in paragraphs (2) and (4) are to be taken to be references to both the occupier and the owner.

[AnthonyB]

A premises being vacant doesn't exempt it from the RRO so technically yes, it no doubt hinges on 'where necessary'.

[Dinnertime Dave]

From the enforcers guidance.

Q Is it an offence under the Order for article 38 measures to fall into disrepair?

A. Not necessarily. As for any of the other provisions made under the Order, the failure to comply (in the case of article 38 to maintain measures provided for fire fighters) is not automatically an offence. The failure can be rectified through the serving of an enforcement notice (where a subsequent failure to comply with the notice is an offence under article 32(d). Where enforcing authorities can demonstrate that the safety of relevant persons is safeguarded through the provision of article 38 measures and that a risk of death or serious injury results from the failure to maintain the measure, an offence will have been committed subject to article 32(1)(a).

[Messy]

it no doubt hinges on 'where necessary'.

and that's my dilemma

Of course in the past with 1000s of occupiers, the firefighting lift would need to be maintained. But with only 2 x security staff (who will mainly on the ground floor) and the odd maintenance visit by 1 or 2 contractors, it changes the situation a little. OK, they are 'relevant persons', but is it reasonable to spend lots of ca$h on maintaining a firefighting lift for such a small and infrequent occupancy. (i.e. low risk)?

Maybe one for the Courts?

[AnthonyB]

Perhaps consultation with the FRS is in order as to their tactics in an empty building - if there is no lift, no life risk and a high level fire would they simply act defensively? What risk is left in the building to start a fire in the first place if combustibles are removed, most power circuits off and security to deter illegal access/occupancy with arson & accidental fire risks?

[Fishy]

The owner is planning on deliberately maintaining their building so that it becomes less compliant with the relevant good industry practice than it is now? That's pretty difficult to justify, in my opinion. 

Whilst it's true that it may not automatically be an offence, it certainly risks prosecution, either now or if a fire occurred (and some types of fire are far more likely in a lowly-occupied building - e.g. arson).

[Messy]

From the enforcers guidance.

Q Is it an offence under the Order for article 38 measures to fall into disrepair?

A. Not necessarily. As for any of the other provisions made under the Order, the failure to comply (in the case of article 38 to maintain measures provided for fire fighters) is not automatically an offence. The failure can be rectified through the serving of an enforcement notice (where a subsequent failure to comply with the notice is an offence under article 32(d). Where enforcing authorities can demonstrate that the safety of relevant persons is safeguarded through the provision of article 38 measures and that a risk of death or serious injury results from the failure to maintain the measure, an offence will have been committed subject to article 32(1)(a).

That's all very well. But look at Article 38 again and there is no mention of relevant persons (obviously operational crews are not relevant persons). This Article is in place "to safeguard the safety of fire-fighters in the event of a fire". My assumption would be from that is that no relevant persons would need to be at risk, just firefighters.

The building is 20 floors (and a couple below ground) and has a wet riser due to fire service access issues. So I would argue, any fire would have the potential to place firefighters at risk, especially if they had to haul kit up 20 floors and the delay that might have on the development of a fire, notwithstanding an empty building's fire loading would be less than when it was occupied.

[Jim Scott]

But firefighters are not relevant persons.

How can it possibly constitute an offence?

[Messy]

But firefighters are not relevant persons.

How can it possibly constitute an offence?

True, but without a FF lift, subject to the design of the building and what it is used for, one could argue that the delay in fire crews accessing upper floors my place relevant persons at risk. Therefore an enforcement notice can be issued and if not complied with, there's an offence (not my view, but that on the CFOA Enforcer's Guide)

[Wils]

It may be an offence under article 32(1). I'm only working from memory, but I think it states that a breach of articles 8-22 and article 38, when coupled with the risk of death or serious injury to relevant persons, is an offence. The lift is provided for the use of FFs but it is there to enable them to get water on the fire, carry out rescues, etc., for the safety of relevant persons. If there are no relevant persons to protect in the event of fire, I can't be an offence under the Order. T'would be a hard one to prove anyway, IMO.

[Fishy]

if we go back to the original post - "...The building will have no occupiers during that period other than visiting maintenance workers and security staff....  Maintenance workers, security staff & anyone else that visits the building (managing agents?) are relevant persons.  They may be present on the upper floors, and therefore may require rescue.  Therefore the fire-fighting lift and shaft would arguably be necessary?

[Jim Scott]

I'm not so sure that is 'reasonable'.