Control – ‘to any extent’
One of the most significant difficulties for fire safety enforcement officers when auditing multi- occupied premises is establishing who has control over the various parts of the premises.
Article 5 (3) of the order states that fire safety duties ‘…shall be imposed on every person, other than the responsible person, ……who has, to any extent, control of those premises so far as the requirements relate to matters within his control’.
As far as the owners or landlords of properties are concerned, the control over the premises is passed to the tenants and the extent of that control is usually detailed in a lease. Commercial landlords have long since seen the benefit of passing the requirements to comply with all health and safety legislation to the tenant but have to balance the abrogation of such responsibilities with the desire to retain their own influence on how the premises are used or altered.
Hence, the full repairs lease. This usually allows the commercial landlord to rid itself of all compliance responsibilities yet retain control of the structure of buildings by requiring the tenant to obtain their permission when alterations are intended, as and when necessary. Consequently, when non-compliance with statutory provisions occurs, the commercial landlord can place responsibility entirely upon tenants and point to the full repairs agreement to support their case.
This was the clear response of the commercial landlords in 3 of my recent cases. In each case the initial reaction of all 3 organisations, in response to attempted enforcement, was to deny any responsibility under the Order, despite repairs leases which allowed them to retain some degree of control. Significantly, none of the three leases referred to the RRO or the responsibilities the Order imposes.
In two of the cases, ‘pub chains’ (they don’t like being called ‘Breweries’ any more), attempted to hide behind full repairs leases and clauses which indicated that the tenant/publican was solely responsible for compliance with statutory requirements. Both cases involved licensed premises, where the exit route from the upper floor led directly into the bar of a public house. There was no issue as to the fact that the pub chains were aware of this fact.
The first case involved an appeal against an Enforcement Notice by Enterprise Inns PLC in respect of licensed premises in Cumbria. Enforcement Notices had been served against the publican/licensee and against the pub chain in respect of required works or works required to ensure compliance with the RRO. The publican did not appeal. Enterprise Inns, however, did appeal on the basis that they were not the responsible persons under Article 3, or ‘persons with analogies duties’ under Arts 5(3) and 5(4).
Following full legal argument regarding the issuing of the Enforcement Notice against the owners of premises, the Magistrates found that, although the responsible person as defined by Article 3, was the tenant, Enterprise Inns had retained responsibilities to maintain and repair and to ensure safety within the premises by offering to assist the tenant with fire safety compliance and be requiring him to seek their approval in respect of any repairs. They found that the pub chain had retained responsibilities under articles 9, 14, 17 and 22.
In the 2nd case, renovations which dangerously positioned the escape route had been carried out by Punch Partnerships (PML) Ltd, and both the fire risk assessor and the publican were prosecuted under the Order. In that particular case, the publican pleaded ‘not guilty’ to certain charges relating to the exit route, making it clear in his defence that he had no control over the exit route in question and was unable to correct the breach of the Order without the consent of the pub chain. The pub chain for their part, initially denied that they were responsible persons or persons with ‘analogous duties’ under the Order. Nevertheless, a summons was served upon Punch.
A jury trial was not necessary to decide the point, as Punch Partnerships eventually pleaded guilty to breaching article 14(2)(b) on the basis that it accepted that the means of escape from the first floor of the premises did not, in the event of danger, enable persons to evacuate the premises as quickly and as safely as possible. Punch have subsequently rectified the situation and built a new external staircase leading from the first floor to the outside of the premises. Punch Partnerships, was fined £2000 and ordered to pay £8000 costs in respect of the breach.
In the third case, the landlord company of a ‘takeaway’ with living accommodation on the upper floors, initially denied all responsibility for their residential tenant following a fire in the ‘takeaway’ premises – in which the tenant was unable to safely evacuate and had to be rescued from the second floor. They stated that the repairs lease with the takeaway owners prevented them from being responsible for the residential tenant’s fire separation and exit route, as both internal and external exit routes passed through the ground floor premises. However, following court proceedings, MJC Developments Ltd pleaded guilty to 3 charges relating to the exit routes, fire separation and, significantly, failing to cooperate and coordinate with other responsible persons (namely – the takeaway owner, who was also prosecuted) under article 22, and was sentenced to a fine of ——–plus costs.
It is hoped, therefore, that these three cases, despite not constituting binding precedents, will lead to a significantly more co-operative approach in the future. All three organisations have now implemented schemes such as the Safety Management Solutions scheme and Punch’s ‘Knowingly Safe’ program, to enable cooperation with tenants who do not have the financial backing to ensure premises are compliant rather than simply denying all responsibility.
