Dont get burned this October

The rules and regulations governing fire control set out in more than 100 pieces of legislation have been simplified by the Regulatory Reform (Fire Safety) Order, which will be introduced as the new one-stop-shop for fire regulation coming into force from 1 October 2006.

The new order, like the health and safety regime implemented by the Construction (Design and Management) Regulations 1994, emphasises fire prevention based on continuous risk assessment. So that means no more fire certificates. But, as with CDM, break the rules and you could end up in jail – at least for the most serious breaches.

Key features of the order

• The order applies to virtually all commercial premises in England and Wales but building sites are excluded. Building sites will be governed in part by the revised Part B of the Building Regulations governing fire safety (see below).
• A “responsible person” must be identified. This person is the key duty holder – usually the person who owns, occupies or controls a building. They could be the managing agents or facilities manager of a multi-let property.
• There can be more than one responsible person but responsibility cannot be diluted by appointing additional responsible persons. The responsible person must delegate duties, but they cannot escape them.
• A “competent person” with “sufficient training experience and knowledge” in fire control must be appointed to assist the responsible person.
• The responsible person is to “take such general fire precautions as may reasonably be required in the circumstances of the case to ensure that the premises are safe”. This covers reducing the risk of fire and its spread and providing a means of escape.
• The responsible person must carry out a fire risk assessment and (in most circumstances) record it and present it on request to the fire safety enforcing authority.
• For new buildings to be completed after 1 October 2006, the responsible person has no grace period for producing their own fire risk assessment – this must be in place upon first occupation of the building. This will undoubtedly create demands to be met at practical completion.
• Designers (which may include a design-and-build contractor) are required to carry out an initial fire risk assessment as part of the design process – again, similar to the CDM.
• Upon completion of the building, an updated fire risk assessment recording fire safety provisions included in the building design must be provided to building control. There are heightened duties for premises that contain or store dangerous materials or substances and for premises that are used by vulnerable people.
• For all premises, the fire risk assessment must be kept under review.

Opportunities and risks

The competent person can be directly employed by the responsible person, or can be a subcontractor, though the order states that an employee must be chosen in preference. Just as a client under CDM must appoint a planning supervisor, a responsible person must nominate a competent person. And, just like a client under the proposed post-CDM regime, a responsible person will not be able to delegate away their responsibilities.

With this in mind, could it be that a new breed of subcontractor or consultant will emerge, as with planning supervisors, to carry out the competent person function? For example, even where an employed facilities manager has the necessary experience to be the competent person for the usual operation of a building, they may not have the skills and qualifications to carry out that role during refurbishment works. This is, no doubt, an opportunity for consultants. And perhaps it could mean a cost-saving for clients where roles of competent person and the post-CDM health and safety co-ordinator can be combined?

Of course, terms of engagement and building contracts will need to cater for the new regime. It is anticipated that the JCT may offer amendments to address the order when it addresses the new post-CDM regime in due course. But in the meantime, employers and contractors would be wise to consider any necessary changes to their standard amendments and technical documents.

The obligations on designers (including design-and-build contractors) are likely to be raised by development funders, future purchasers and tenants. Are initial fire assessments already under way on your current projects or those starting on site this autumn? Designers should consider the long-term consequences of design decisions made now, to allow for long term compliance with the new order. A multi-component system being specified now needs to include components that will meet future fire risk assessments and that work together to give required fire protection.

Designers need to consider the long-term consequences of decisions made now, to allow for compliance with the order

In cases of the most extreme breaches of the order, the so-called responsible person could face a jail sentence. However, guidance does suggest that in all but the most serious cases, the fire authority will work with the responsible person to achieve a satisfactory level of fire safety, rather than initiate criminal proceedings.

Failure to comply with the order will almost certainly put an occupier in breach of its buildings insurance policies. The question is, will works insurance policies be similarly affected if initial assessments are not properly carried out?

Building Regulations 2000: Part B – fire safety

The amendments to the Building Regulations have not yet come into force and are under consultation, with the intention that the revisions dovetail with the order. However, it is wise to consider now the likely requirements and impact for developments.

Proposals include a general regulation to provide sufficient information for the owner or occupier to operate, maintain and use the building in reasonable safety and to allow their own fire risk assessment under the order. This proposal perhaps should be adopted now in any bespoke requirements for operations and maintenance manuals and/or health and safety files. The amount of information and the level of detail expected is likely to vary depending on the nature and complexity of the building design. However, guidance indicates that an as-built plan of the building should be provided illustrating escape routes, location of fire doors and other fire separating elements, location of smoke detectors and alarm points and any sprinkler systems.

A further proposal is the introduction of a regulatory provision to require adequate recording of fire safety information upon the construction of a new non-domestic building, or upon the material change of use of the building. Further technical proposals deal with issues such as cavity barriers, a maximum compartment size (without sprinklers) in warehouses, and compartment wall design requirements to take account of deflections during fire. Tension between environmental regulations and green aspirations for buildings and fire safety can be predicted here, with attendant legal risk for designers.

October’s new fire safety regime certainly gives everyone involved in the design and construction of buildings a lot to think about. The consolidation of the previous rules and regulations is to be warmly welcomed, but if you and your buildings are not ready to meet the new challenges by 1 October this year, you may quickly get your fingers burned.