Control by others

[lyledunn]

I know that this has been discussed before but I am interested to know what judgement would be made on the following;
A niteclub EE spills out on to a car park owned by others. There is a right of way and that has been ratified in law. The way is marked out in yellow paint but inconsiderate or perhaps just ignorant drivers park immediately outside the EE sometimes so close that the door will not open. The solution is simple in that the owner of the car park would permit the installation of bollards. However, the relationship between the two parties is poor and he is adamant that he will not grant such permission. Any one know how the courts would see this?

[Davo]

Hi Lyle

Any signage or hatched area ?

davo

[lyledunn]

Davo, yes the area in front of the door and a route away for some distance is hatched in yellow paint and notices warn to keep clear.

[kurnal]

in england and wales the onus would be on ther responsible person for the nightclub to make adequate arrangements to ensure the means of escape is maintained available for safe use at all times.

[Phoenix]

I believe what kurnal says is true for NI also but I'm not sure why (see below). 

I would look at the contract that confers the right of way over the car park.  If the owner of the car park is allowing cars to be parked in a manner that obstructs access to the right of way then he or she could be in breach of that contract.

[Not sure about NI legislation but if this were in England or Wales there might be room for an argument that Article 5 (3) imposes a duty upon the car park owner as he or she does have control over the premises by virtue of the fact that he or she can allow cars to block an exit.  Blocking an exit is certainly applying a degree of control over the premises and the car park owner does have control over this matter.  Also in England and Wales Article 22 could come into play as the car park owner has a duty which is imposed by the existance of the right of way contract.]

I have looked at the NI legislation (2010 Regs) and cannot see on whom duties are imposed.  It refers to Article 30 (1), is this in the 2006 Order?  If so it doesn't specify who duties are imposed on.  I don't get it.  You could consider Article 21 in the 2010 Regs.

[Fishy]

Covered under regulation 22 (Co-operation & co-ordination), I would think?  If it's proving impossible for the nightclub owner to resolve then they could always ask the Fire Authority to have a word.  I guess enforcement might be an option if they aren't being reasonable.

[kurnal]

The fire service is frequently asked to get involved with neighbours disputes. I agree that there are tools within the Order that could be used but  I soon learned not to get involved as you are on a hiding to nothing. My response was always to turn it back on the dutyholder. My response was that the RP / licensee should should either take steps to ensure the site can be safely used or alternatively dispense with their licence. There are other mechanisms that may be used to enforce way leaves , boundary  and contractual disputes. Usually a solicitor is the best solution. The fire services role is enforcement not mediation.

[lyledunn]

I think that the NIFRS or Council will take the approach that you suggest Kurnal. You could see a long drawn out case developing. The thing is, what to do in the meantime? If the exit was unavailable the situation would be intolerable.

[kurnal]

Then the fire service would act to enforce the Order and the first target would be the duty holder. Remember the definitions of an offence and how this may be proved, third parties are more likely to be charged following a fire as then it is much easier to prove an offence has been committed and persons placed at risk

[Messy]

I dealt with a number of cases where a responsible person would seek advice about a neighbour blocking off an agreed MOE through their property (often where I worked this involved a MOE from the roof and through the neighbour's identical over height single staircase building).

I used to explain to the complainant that an Inspecting Officer would attend if the RP really wanted one, but as Kurnal has said, we may issue a notice or insist on a voluntary agreement (akin to a voluntary prohibition notice) as we had very little powers in such disputes to force the neighbour to do anything. I would advise that the consult a solicitor in the first instance.

Some RPs just didn't understand my advice or were just so angry and insisted a IO attended. I hated these jobs as there were no winners when on a number of occasions, I informed RPs that they would not be able to use the top floor(s) until the MOE situation was fixed

[Fishy]

I'm not disputing any of this, but I am surprised (& rather disappointed) that regulation 22 is so toothless in this respect.  I seem to recall from discussions I had during the gestation period of the Order that this was precisely one of the issues that the regulation was meant to address - fire authorities could take action directly against the person causing the issue, rather than having to clobber the person with the issue about something they could not fix!  People have a duty to co-operate (to the extent that it is reasonable) with others (e.g. neighbours) in assisting them to fulfil their obligations under the Order.

I must admit that I hadn't thought through the implications of inviting an IO in to witness that a required MofE isn't available - might obviously place them in a difficult position!

[Mike Buckley]

In my view it would depend on the setup. I was under the impression that Regulation 22 came into effect where there were multiple RPs within the same premise so there was the heirarcy where there were RPs who were employers, an RP who was the Building Manager and an RP who owned the building.

In this case it is not clear whether there is any legal relationship between the two RPs or whether the two establishments can be considered to be the same premises.

I would agree the best course of action seems to be, get the solicitors involved over the Rights of Way issue.

[Fishy]

Not sure it's absolutely necessary for them to share a premises - there are obligations where they "...have duties in respect of..." a premises, which doesn't necessarily mean they need to occupy it?  Also not convinced that there necessarily needs to be any defined relationship under civil law (e.g. a contract) in order for duties to be imposed?

Just my interpretation & my views... as I've heard lawyers say, until there's case law it's all a matter of opinion!

[kurnal]

In response to Fishy it would be very difficult for the fire service to take action or even lean on a third party under article 22 without mirroring this action or greater action against the Responsible Person. Otherwise the RP could have a powerful defence should they open the club with an obstructed exit and slope shoulders of their responsibility to maintain the means of escape or at least have considerable grounds for mitigation if they operate the club with inadequate MOE and if the fire service have difficulty in enforcing action against other persons having control.

I am sure that in the event of a fire the Beak would suggest that the fire service had failed in not using their powers to reduce the risk directly 

In summary its my view the Responsible Person (employer) will always have primary responsibility and whilst other persons may have an element of control, I cannot envisage action being taken against a PHC under article 22 in isolation.   

[Mike Buckley]

Fishy, if I take it to an extreme, if I own a factory with a yard behind it and the person who owns the next door building decides to open a nightclub, does that give him a right to use my yard as an escape route?