OVERVIEW OF THE ORDER AND
The Regulatory Reform (Fire Safety) Order 2005
The Regulatory Reform (Fire Safety) Order came into effect on 1 October 2006. It is the main piece of legislation governing fire safety precautions in non-domestic premises in England and Wales. It was introduced to consolidate and simplify existing fire safety law1 into a single piece of legislation.
The Order is the implementing legislation for the fire safety aspects of various European Directives2, in particular, the Framework Directive (Directive 89/391/EEC)3. The Framework Directive establishes the general principles for managing health and safety at work and the protection of workers based on the principles of risk assessment and imposes various duties on employers to ensure the safety and health of workers and (to a lesser extent) others. The requirements of the Directive are reflected in the provisions of the Order.
The Order’s overarching purpose is to require minimum fire safety standards in premises other than private homes. It sets out a goal-based fire safety regime founded on the principles of risk assessment4. It requires appropriate fire safety precautions to identified, implemented and maintained in order to reduce and mitigate the risk from fire. It applies in addition to and alongside the fire safety requirements of other legislation such as the Housing Act 2004 and Houses in Multiple Occupation (England) Regulations, the Building Regulations 2010 and the Health and Safety at Work Act etc. Act 1974 and associated regulations.
The general principles of the Order are straightforward: it identifies and imposes duties on the person responsible for particular aspects of fire safety (usually called the ‘responsible person’) in relation to the carrying out of fire risk assessments, the implementation and maintenance of appropriate fire safety measures and emergency procedures.
The main enforcing authorities are the Fire and Rescue Authorities.
Government guidance issued under article 50 of the Order is available for duty holders on the discharge of their duties at https://www.gov.uk/government/collections/fire-safety-law-and-guidance-documents-for-business.
Scope and application
With certain exceptions, discussed below, the Order applies to ‘any premises’ except domestic premises (private dwellings)5.
Premises are defined in article 2 of the Order as follows:
‘premises’ includes any place and in particular, includes –
Any vehicle, vessel, aircraft or hovercraft;
Any installation on land (including the foreshore and land intermittently covered by water), and many other installation (whether floating, or resting on the seabed or the subsoil thereof, or resting on land covered with water or the subsoil thereof); and
Any tent or movable structure
This definition is deliberately very broad and covers permanent and temporary buildings or structures and surrounding areas and vehicles. This is because its purpose is to ensure that any place where fire safety is not regulated under more specific legislation (see below) falls under the Order by default.
It is important to understand that, except in relation to ‘workplaces’, which are always included, and domestic premises (private dwellings), which are always excluded, the use of the premises is irrelevant; thus the definition includes all workplaces and commercial premises (including those used by self-employed persons and for family run businesses); premises used by the voluntary sector and community organisations (e.g. church halls) whether for profit or not; all premises the public have access to (e.g. hotels, theatres, airports, sports and entertainment arenas); and the common areas of multi-occupied residential dwellings such as HMOs and blocks of flats.
Although on the face of it, under subparagraph (b) the Order appears to apply to all forms of transport, most are in fact excluded (see below)
The Order distinguishes workplaces in particular as being premises to which it applies because it is the implementing legislation for the fire safety aspects of the European Framework Directive (Directive 89/391/EEC)6. The Framework Directive establishes general principles for managing health and safety at work and the protection of workers based on the principles of risk assessment. Most importantly for present purposes it imposes various duties on employers to ensure the safety and health of workers the fire safety aspects of which are specifically required to be reflected in the provisions of the Order.
‘Workplace’ is defined in article 2 as:
Any premises of parts of premises, not being domestic premises, used for the purposes of an employer’s undertaking and which are made available to an employee of the employer as a place of work and includes –
Any place within the premises to which such employee has access at work; and
Any room, lobby, corridor, staircase, road, or other place –
Used as a means of access to or egress from that place of work; or
Where facilities are provided for use in connection with that place of work,
other than a public road.
This definition is deliberately broad. For example, it would include places such as docks, racecourses, construction sites, scrapyards and parks. It does not include public roads. Note, however, that “fields, woods or other land forming part of an agricultural or forestry undertaking but which is not inside a building and is situated away from the undertaking’s main buildings” are not workplaces, because they are not ‘premises’ within the meaning of the Order7.
Article 6 (2) makes clear that the Order applies to ‘any premises’ (broadly defined in article 2 to include permanent and temporary buildings or structures and surrounding areas and vehicles, see above) unless they are excluded under article 6 (1).
Article 6 (1) sets out a list of premises which are excluded from the Order:
6.— Application to premises
(1) This Order does not apply in relation to—
domestic premises, except to the extent mentioned in article 31(10);
an offshore installation within the meaning of regulation 3 of the Offshore Installation and Pipeline Works (Management and Administration) Regulations 1995;
a ship, in respect of the normal ship-board activities of a ship’s crew which are carried out solely by the crew under the direction of the master;
fields, woods or other land forming part of an agricultural or forestry undertaking but which is not inside a building and is situated away from the undertaking’s main buildings;
an aircraft, locomotive or rolling stock, trailer or semi-trailer used as a means of transport or a vehicle for which a licence is in force under the Vehicle Excise and Registration Act 1994 or a vehicle exempted from duty under that Act;
a mine within the meaning of section 180 of the Mines and Quarries Act 1954, other than any building on the surface at a mine;
a borehole site to which the Borehole Sites and Operations Regulations 1995 apply.
The general purpose of article 6 (1) is to ensure that places which might fall within the broad definition of premises in article 2, but which the Order is not intended to cover are actually excluded. This is either for underlying public policy reasons (domestic premises) or because fire safety already is regulated by other legislation applying specifically to those premises (offshore installations such as oil rigs, ships, most means of transport, mines and boreholes, woods and agricultural land).
Domestic premises are excluded from the scope of the Order by article 6 (1) (a). In relation to the Order at least, an Englishman’s home is his castle8.
Domestic premises are defined in article 2 of the order as
“premises occupied as a private dwelling (including any garden, yard, garage, outhouse, or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling”
This includes houses, flats, bedsits and private rooms in HMO9s and student halls.
The Order does, however, apply to all common parts of multi-occupied residential dwellings such as HMOs, student halls and blocks of flats. This includes shared facilities such as kitchen and bathrooms and areas which are used by the residents of more than one dwelling such as stairs and corridors. This means that owners or landlords or other duty holders under the Order responsible for purpose-built flats or flats within converted buildings will still have responsibilities under the Order in relation to common areas.
The one exception to the rule that the Order does not apply to domestic premises is set out in article 6 (1) (a) of the Order which provides that in certain circumstances Prohibition Notices can be issued which apply to HMOs, see chapter four.
Article 6 (1) (c) excludes from the scope of the Order:
a ship, in respect of the normal ship-board activities of a ship’s crew which are carried out solely by the crew under the direction of the master
“Ship” includes “every description of vessel used in navigation”; “normal ship-board activities” “include the repair of a ship, save repair when carried out in dry-dock”10.
The rationale for this exclusion appears to be because fire safety on ships is regulated through navigation licenses (which requires a minimum standard of fire safety precautions as a precondition for the grant of a license).
Things taking place on ships which do not fall within this definition are, however, included. This is clear from the government’s Guide to Fire Safety Risk Assessment in Sleeping Accommodation11, which states that it applies to narrow boats and cruisers. In addition, any ship which is not being used for navigation (passage on water) (e.g. permanently moored boats) will still be subject to the Order, as will floating premises such as pontoons.
Means of transport
On careful reading, most vehicles are in fact excluded from the Order.
Article 6 (1) (e) excludes from the scope of the Order
an aircraft, locomotive or rolling stock, trailer or semi-trailer used as a means of transport or a vehicle for which a licence is in force under the Vehicle Excise and Registration Act 1994 or a vehicle exempted from duty under that Act
In addition, article 7 (2) disapplies articles 9 (2), 12, 16, 19 (3) and 22 (which impose additional fire safety duties in relation to dangerous substances) in relation to the use of means of transport for dangerous substances where this already covered by international and European legislation, except for means of transport intended for use in a potentially explosive atmosphere. The practical effect of this is that only vehicles not used on public roads are likely to fall within the scope of the Order12.
Other exclusions not listed in Article 6
There are other exclusions or limitations to the application of the Order for practical and public policy reasons.
Fire safety duties under the Order do not apply the extent that they would prevent any member of the armed forces, police or emergency services from carrying out their duties13.
The requirement in article 14 (1) (f) not to lock emergency doors in such a way that they cannot be easily and immediately opened by any person in an emergency does not apply to prisons and other premises used for keeping persons in lawful custody or detention14. This is subject to the overriding requirement that the safety of relevant persons must be ensured so far as is possible15.
Articles 49 and 51 limit the application of the Order to land owned or occupied by the Crown (including the Houses of Parliament), visiting forces, international headquarters and defence organisations designated for the purposes of the International Headquarters and Defence Organisations Act 1964 (essentially it prevents enforcement action being taken against these individuals or organisations under the Order).
For historic reasons, underground railway stations in Wales are regulated under the Fire Precautions (Sub-Surface Railway Stations) Regulations 1989 instead of the Order.
Summary of key points
The Regulatory Reform (Fire Safety) Order 2005 is the main piece of legislation governing fire safety law in England and Wales. It implements the fire safety aspects of a number of European Directives, including the Framework Directive and imposes various duties to design, implement and maintain fire safety measures based on risk assessments in order to offer reasonable protection from fire safety risks to employees and others. It applies to all premises (defined very broadly) unless they are excluded under article 6 (1) of the Order. Excluded premises are, broadly speaking, private dwellings and those in which fire safety is specifically regulated under other legislation.
It is important to remember that the Order does apply to the common areas (e.g. stairway, halls, shared lounges and kitchens) of buildings containing private dwellings such as HMOs or blocks of flats.
1This principally comprised the Fire Precautions Act 1971 and the Fire Precautions (Workplace) Regulations 1997, but in total the Order repealed, revoked or amended 79 pieces of primary and subordinate legislation, see HC 684, the House of Commons Regulatory Reform Committee Proposal for the Regulatory Reform (Fire Safety) Order 2004, Eleventh Report of Session 2003-2004 (July 2004), paragraph 22.
2These are: Council Directive 89/391/EEC (‘the Framework Directive’); Council Directive 91/383.EEC (‘the Temporary Workers Directive’); Council Directive 89/654/EEC (‘the Workplace Directive’); Council Directive 94/33/EC on the protection of young people at work; Council Directive 98/24/EC (‘the Chemical Agents Directive’); and Council Directive 99/92/EC (‘the Explosive Atmospheres Directive’). See the Explanatory Note to the Order for a list of the specific provisions implemented by the Order.
3Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the health and safety or workers at work.
4HC 684 paragraph 22.
5Article 6 (2)
6Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the health and safety or workers at work.
7Article 6 (1) (d)
8There is, however, s a general trend towards regulation of the private rental sector (HMOs and privately let homes or flats) in relation to fire safety and generally under the Housing Act 2004 and associated legislation, see chapter six.
9‘House in Multiple Occupation’. This is a property occupied by individuals who do not live together as a single household but who share living facilities such as toilet, bathroom or kitchen facilities. Each occupant will usually have a lockable private room or area within the property.
11HM Government (2006)
12See Regulatory Reform (Fire Safety) Order 2005: Guidance Note No. 1: Enforcement, Department for Communities and Local Government (published 23 October 2007) (“Guidance Note No. 1”), paragraph 47. The examples given in the guidance are forklift trucks and cherry pickers.
13Article 7 (3)
14Article 7 (4)
15Article 7 (6)