Residential Fire Issue- who gets prosecuted?

[AnthonyB]

Let's set a scenario.

A high rise residential tower, quite new, several hundred flats. The designers were able to rip up AD B with respect to travel distance, lobbies inside flats & number of stairs via two engineered solutions:

a) Residential sprinklers to limit fire size/growth
b) custom designed powered smoke control system to clear any smoke that does escape the flats into the common corridor off the stairs.

The developer retains ownership of the common parts and remains ground landlord for the flats, but sells the flats off with some being owner occupied, many being let by the new owners as a residential investment.

All systems in the common areas are fully serviced and tested.

However the sprinklers are not common. Each flat appears to have it's own system that is not fed off the common riser spur in, but the flats' side of the supply stopcock and water meter, located in a utility/boiler cupboard inside the flat.

As such there is no access to the sprinklers for maintenance and the way it''s been installed it's on the flats pipework anyway and under their control.

Developer services vacant unsold flats and writes regularly to owners/landlords of all sold flats stating they need to service the systems as part of the agreed fire strategy and that their contractors will do the visit (and bill them not the developer) if they don't want to find their own contractor.

Not one flat owner cooperates.

Fire service tearing hair out (although they and the BCO agreed on the layout of installations!) as they say they cannot enforce against the flat owners or occupiers as private dwellings. They intend to take action against the agent for the common parts because of this.

Now as the location and control of these systems is within a private residence, part of it's water system, and under their control. The agent/developer don't employ anyone in the flats or have any direct control.

They only have a non fire related clause in the leasehold that can provide for forced entry under certain circumstances.

They do not relish the prospect of employing bailiffs to kick in the front doors of 200 flats once a year in order to forcibly service their sprinkler systems as in reality this is the only way left that they could do this.

It's a legal issue not technical so determination is not applicable and so an appeal to notice is going to happen if it gets that far. Everyone accepts (except the flat owners it seems) maintenance is required.

So you think the F&RS are going for the easy target to cover the paradox caused by the E&W legislation and to cover their total lack of foresight when not bringing the potential issue up during the design stage?

Could the EHO's take action against each flat owner under the Housing Act instead?

[kurnal]

Presumably the smoke clearance system has been calculated to deal with a sprinkler controlled fire. I would not blame only the fire service for a lack of forsight, the BCO must carry much of the blame but above all the developer. People have a responsibility to design and develop in a responsible manner and it should not be a case of "what can I get away with" the focus should be on creating a safe environment for people to live in a cost effective manner.

Its down to the  developer who fortunately retains control of the common areas. Remember theres nothing wrong with the flats per se. the sprinklers are there to protect the communal areas in which relaxations were made. I bet the developer has a service and maintenance charge, it looks like the occupiers are giving him no option but to undo some of the relaxations by putting additional safeguards in place to compensate for the lack of sprinkler protection, eg compartmentation, increasing the performance of the ventialtion system etc. All of which may be fairly passed on to the occupiers in increased service charges.  The fire service should serve an enforcement notice on the developer to do this work and he should do what he can in the civil courts to recoup the cost from the occupiers.

[AnthonyB]

It's even more complicated....

The sprinklers were also used to allow an open plan design in each flat as well as the common relaxations. Each flats front door opens into an open plan lounge/diner with the kitchen area located such that you pass it in order to reach the front door.

Bedrooms (1 or 2) and bathrooms are then rooms off this open plan area as well.

If the engineered solutions were discounted the whole place would be non compliant, flats as well as common space!

[kurnal]

The Housing Act 2004 as you say has the hazard rating system for the categorisation of hazards, is enforced by the local authority and can apply to blocks of flats and individual flats.  Improvement notices and prohibition notices can be served and that may be the appropriate route, though if the only issue is relating to fire safety I guess there will be shennanigans and buck passing because it will take a brave person to enforce a prohibition notice and put residents out on the street.

In terms of fire safety legislation article 31 could be considered, taking the premises as a whole.  Of course the problem with that is that a prohibition notice cannot be used as a threat. It either is too dangerous to occupy or not.  If it is to be used it must be served, enforced and then the remedial action must take place before the place is reoccupied.  

[tmprojects]

firstly I am amazed to find the flats have control and influence over the sprinkler system where it is installed to protect the common parts.

Simply, if it was an engineered solution that the freeholder needed to maintain to ensure it conformed to its design strategy, then its maintenance should of been stipulated within the contract between the freeholder and the owner/lease holder.

Under the FSO I would first look to enforce the freeholder(RP). Let him sort out the legal minefield. If he then came back with due diligence and showed he had no legal control over the system in each dwelling then each owner could be individually enforced under 5(3) as they have control over part of the system that forms part of the fire safety design of the buildings common parts.

So in short. If anyone was to be prosecuted it would be the person who has, to their extent, control.

Having said all that. Something has clearly gone wrong in respect of 16b.

[wee brian]

There's nothing wrong with 16b as everybody knows what they need to know. The problem is that they can't maintain the design.

If the freeholder can't ensure that the systems in the flats are properly maintained then he'll have to adopt a different solution. Build a new stair and or uprate the ventilation system (might be a bit difficult but thats his problem).

They probably should have put something in the lease agreements but I guess its a bit late for that.

Or they could have designed it properly.

[Midland Retty]

I agree with Wee Brian and TMProjects

The scenario is complex, and no enforcing authority (FRA or LHA) is going to have the time or resources to try and individually enforce this on 200+ leaseholders / residents.

Instead the freeholder will be approached and asked to deal with it through either tenancy / leaseholder agreements or to come up with compensatory measures if they cannot do so.

As Brian suggests this situation should never have been allowed to exist. Provision should have been made in leaseholder agreements to allow access for servicing and maintenance. Simple as that. It is nuts and bolts / bread and butter stuff.

I'm wondering what on earth BCO / AI thinking with this scenario, and did the fire authority know about this? If so why didn't they do anything about it?.

Unfortunately someone is going to get a rather large bill and a very big headache trying to sort this one out.

[CivvyFSO]

1) Regarding the open plan layout, the sprinklers are there to protect the people in the inner-rooms, so more the fool them if they don't maintain the system. They are masters of their own destiny with this regard, so long as they are made aware the reason for the sprinkler system being there.

2) The fire service are unable to enforce anything within the domestic areas, so we can not force these people to maintain the system.

3) Simply not having the system maintained would not automatically lead to an offence, so we can not prosecute someone simply for not maintaining it either. (If we had proof that the system was turned off or faulty, then prosecution would then be possible)

4) The RP simply does not have control, so they cannot truly be held accountable.

However, should a fire occur, and the non-maintenance of the sprinkler system means that the smoke control system is overpowered, and relevant persons are put at risk of death/serious injury, then we can prosecute the flat owner for failing to comply with article 17(4). This would be done under 32(10). We could also take the RP on, but if they have made every effort to remedy the issue, it would be pointless as they have a valid defense.

32 (10) Where the commission by any person of an offence under this Order, is due to the act or default of some other person, that other person is guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

Unfortunately I believe that it is a situation where we essentially have to wait for the actual offence to happen via a fire occurring before we can do anything.

[wee brian]

So. If all the fire doors to the flats were replaced with eggbox doors are you saying there's nothing you can do?

[Midland Retty]

I disagree Civvy

In answer to your points...

1) See below
2) Im of the opinion, although I might have misunderstood the scenario, the sprinklers not only protect individual residents, but also protect the communal areas / MOE. If that is indeed the case then the fire service could intervene.
3) True, but I suggest it would warrant the immediate issue of enforcement notice(s) in this case.
4) The RP does have some control over the premises, and I would argue it is reasonable for the RP to implement additional measures to balance the failures / lack of protection to the MOE for the safety of all leaseholders. It may well be that the freeholder has a clause in the lease agreement allowing them to claw back any funds outlaid in doing so.

An EA simply would not and could not enforce 200+ residents to comply... it would be an absolute logistical nightmare. What if (ok this is a bit far fetched) what if they all failed to comply with an enforcement notice?? 200+ court cases?? ....

Which leads onto your final comment, Civvy, that it would probably take a fire to occur where someone was put at risk/ killed , for someone to end up in court... because the cause of the offence could be pinned down probably to one resident.

[Dinnertime Dave]

An EA simply would not and could not enforce 200+ residents to comply... it would be an absolute logistical nightmare. What if (ok this is a bit far fetched) what if they all failed to comply with an enforcement notice?? 200+ court cases?? ....

Look at it this way 200 notices all the same first one in court all the other fall into line. just off out to watch the flying pigs over the village green.

On a more serious note does article 5(3) apply. if my memory serves me right CT`s draft flats guide seems to suggest it might be used to enforce FR Doors.

[CivvyFSO]

So. If all the fire doors to the flats were replaced with eggbox doors are you saying there's nothing you can do?

An enforcement notice could be issued to the tenant to rectify that matter. The flat door is not actually inside a domestic dwelling.

Retty, from the regulators guidance:

It must be noted that the occupier is required to co-operate by virtue of article 17(4) therefore it is possible to enforce on a occupier of a domestic premises where that person’s premises may impact upon the fire safety of the remainder of the premises. However, the extent to which that occupier may be considered to be a person on whom duties are imposed by virtue of article 5(3) will depend on the circumstances of the case. The article was intended to provide landlords with some backing that they could cite in the civil courts. Where the responsible person breaches article 17 because the occupier of parts of the premises to which the Order does not apply will not co-operate (for example over maintenance of a fire alarm system that extends into a private flat) then that occupier could be prosecuted by virtue of article 32(10) or may be held as a duty holder under article 5(4).

This is almost mirroring my opinion of it, although I would add that the lack of maintenance does not give an automatic offence; You would have to prove that, when required, the system wouldn't work as intended.

[Midland Retty]

Don't get me wrong Civvy I accept that the tenant / leaseholder could be prosecuted as the enforcers guide suggests. Unfortunately the sheer number of leaseholders in the scenario creates huge problems, and I think the freeholder was silly to have not included something in the lease agreement to allow for access to the sprinkler systems in the first place and should therefore address that by other means.

The tenants / leaseholders could argue " There is nothing in my lease requiring me I have to allow access for my sprinkler system to be serviced/inspected/maintained "

[wee brian]

Then the landlord doesnt have an adequate system in place - nick him

[CivvyFSO]

They can argue about leases and agreements until they are blue in the face, there is a legal requirement under the RRFSO which states they 'must' cooperate. Our difficulty is the lack of a direct offence on their part purely for not co-operating. If it was made an offence in the same manner as not complying with an enforcement notice then it would be much clearer.

A FRS could be brave and issue a notice on a tenant under article 17 attempting to force them to co-operate. Let them appeal, then let the courts decide. Tell you what... YOU do it Retty, I hear West Mids are brave like that.