Part 4: appendix 4 - fire regulations and their effect on the use of property
The Valuation Office Agency's (VOA) technical manual for the rating of business (non-domestic) property.
This document details the effect of fire safety regulations on the rateable hereditament, the fire safety regulations applicable to non domestic properties, their enactment, which is a matter for the fire safety authorities and the occupier, and provides guidance on when enforcement action may affect rating assessments.
The Regulatory Reform (Fire Safety) Order 2005 (FSO) came into effect in October 2006 and replaced over 70 pieces of fire safety law. A detailed synopsis of the fire regulations and process of enactment is provided at section 3.0 et seq below.
2. The effect of fire regulations on the rateable hereditament
The FSO abolished the requirement for properties to have a fire certificate and replaced it with a duty on a ‘responsible person’ (usually the owner, occupier or employer) to carry out a risk assessment and implement appropriate measures to minimise the risk to life and property from fire; and to keep the assessment up to date by maintaining a fire management plan.
As the fire safety standards required under the FSO are personal to the occupation of the property and not the building itself the presence or absence of such items is considered not material to the consideration of the hereditament to be entered in the rating list but a matter for valuation.
2.1 New properties
The Building Regulations 2006 Approved document B - Fire Safety requires that a new building must provide means of fire escape to enable the building to be passed as complete and therefore capable of occupation. A property being brought into the rating list as a result of a completion notice will therefore be assumed compliant with the FSO and capable of occupation. In rare circumstances the completion notice may exclude adjacent property which would act as the secondary essential means of escape for the hereditament deemed to be complete. In this situation it is not possible to assume that the escape route conforms to the statutory requirements and such circumstances may be relevant to the valuation. (John Kiel Ltd v Woolway  R.A. 37 LT held that although the effect of the completion notice was to deem the first and second floors of the building completed, the hereditament comprising those floors was of little or no value because the necessary fire escape through adjacent property was not completed.
Where the VO is considering assessment of a new property without a completion notice and the building is occupied then evidence of beneficial occupation is present and the resulting valuation will reflect the facts. If the building is unoccupied and without a completion notice RM section 3 part 3: Unoccupied Hereditaments and completion notices guidance should be followed. Liaison with the billing authority is recommended to determine if a completion notice is to be served. New unoccupied property should not normally be brought into assessment without a completion notice unless the Valuation Officer has established evidence that the property is capable of beneficial occupation reflecting the properties physical state at the material day, is a rateable hereditament and therefore should appear in the rating list. Normally consideration of comparable occupied properties in similar physical condition will indicate if the building is capable of occupation in its current physical state.
2.2 Existing properties
A breach of the FSO does not prevent occupation of the building until a statutory notice is served in the form of a prohibition notice. If a prohibition notice is in force then it is illegal to occupy the premises. This will be sufficient to prevent the owner being liable to the Empty Property Rate on the basis that the owner is prohibited by law from occupying it or allowing it to be occupied. (Under the London Building Acts (Amendment) Act 1939 a building was required to have a means of escape in case of fire. As the property did not have a fire escape, there was no liability to unoccupied rates as the occupation of the property was prohibited by law (Tower Hamlets v St Katherine by the Tower 1982 RA 261).)
A legal restriction on occupation such as a prohibition notice or closing order needs to be considered for valuation but it is not considered it is fatal to there being a rating assessment. Certainly the premises are a hereditament on the basis that they may be liable to a rate. Whether the notice or order would affect the valuation or reduce it to nil would depend on whether the works to make it compliant are possible rebus sic stantibus (see RM section 3 part 6), come within the category of works a landlord would consider economically reasonable to do to remedy disrepair before a tenancy commences or a prospective tenant would envisage undertaking if not repairs. provides guidance. If these works would result in the lifting of the notice or order then this is something to which regard can be had in the valuation.
3. The fire safety regulations and process for enactment
The Regulatory Reform (Fire Safety) Order 2005 (FSO) applies to England and Wales. The powers and functions of the Secretary of State under the Order have been transferred to the National Assembly for Wales in respect of Wales. With the introduction of the Regulatory Reform (Fire Safety) Order 2005 (“the Order”) in October 2006, Fire and Rescue Authorities and other bodies (“enforcing authorities”) now have a duty to enforce fire safety in non-domestic premises. The following hyperlinks provide full details of the Order and supplementary guidance documents.
The FSO applies to all non-domestic premises in England and Wales, including the common parts of blocks of flats and houses in multiple occupation (HMOs).
The purpose of the FSO was to simplify fire safety legislation and reduce the number of enforcing authorities that people and businesses have to deal with. The FSO abolished the requirement for properties to have a fire certificate and replaced it with a duty on a ‘responsible person’ (usually the owner, occupier or employer) to carry out a risk assessment and implement appropriate measures to minimise the risk to life and property from fire; and to keep the assessment up to date by maintaining a fire management plan.
There are likely to be a range of prevention and protection measures possible in individual premises dependant on the type of occupation and number of people requiring access. The FSO allows the responsible person to decide which would be most appropriate in the light of the premises and those who may be within the premises at any one time.
Unlike the previous ‘fire certificate’ regulations, which were attached to the property itself, the new ‘self assessment’ system means the fire assessment is based on the type of occupancy and will therefore vary from business to business. For example an industrial unit occupied by a fireworks manufacturer will have a different fire risk assessment to that of a vehicle repair workshop.
Equally, a four storey block of offices in multiple occupations will have separate fire assessments for each occupation, varying dependant on the circumstances on the ground e.g. lift availability, if the lift is not fire proof then the first floor and above will require an alternative means of escape, such as a staircase.
The Building Regulations 2006 came into operation in April 2007, replacing and consolidating earlier regulations and revisions. Within the regulations are a number of approved documents that seek to provide practical guidance to developers of property in respect to the requirements of Schedule 1 to and regulation 7 of the Building Regulations 2006 for England and Wales.
The detailed guidance contained in document B is to enable developers and responsible persons to ensure their properties are compliant with the necessary fire and safety requirements for the use of the building in accordance with the FSO. Designs that are in accordance with approved document B will be compliant, however deviations from this are permitted if it is shown that compliance is met using the variations.
Therefore providing the fire safety measures are adequate to mitigate the potential risk, it is for the responsible person to decide which to adopt from the range of available options.
Fire and Rescue Authorities are required under the FSO to audit business premises within their local areas to ensure compliance with the requirements of the FSO and that adequate fire safety measures are in place. In addition, authorities have a duty to provide fire safety advice when requested. In delivering their audit and enforcement duties, Fire and Rescue Authorities are expected to act openly and in proportion to the identified risk, and wherever possible, to allow the responsible person a reasonable timeframe in which to implement any fire safety improvement.
In cases where a serious risk exists and is not being managed, Fire and Rescue Authorities have a statutory duty to enforce compliance with the FSO. A brief synopsis of the enforcement process is given below.
4. The enforcement process
4.1 Alterations notice
An alterations notice may be served under article 29 of the Order. The Fire and Rescue Authorities must consider measures that are proportionate and reasonable to address the particular risks they find at the premises. If the risk is not immediate or high, they can agree with the occupier an appropriate time period to make the necessary improvements. An alterations notice specifies the matters which in the authorities opinion, constitute a risk to relevant persons or may constitute such a risk if a change is made to the premises or the use to which they are put.
The responsible person may manage the risk by adopting measures detailed in Building Regulations 2006 Approved document B - Fire Safety, or other measures proven to address the risks identified. If the recommended improvements are not made within the agreed time, or if the fire and rescue service finds a serious fire risk that the occupier is not managing, they have a legal responsibility to make sure the law is complied with.
An alterations notice served may be withdrawn at any time and, for the purposes of article 29, the notice is deemed to be in force until such time as it is withdrawn or cancelled by the court under article 35(2), the appeals process. Nothing in this article prevents an enforcing authority from serving an enforcement notice or a prohibition notice in respect of the premises.
4.2 Application for determination by the Secretary of State
Where improvement of fire precautions is agreed, but the action to be taken is disputed the parties may agree to approach the Secretary of State,for determination under article 36 of the Order. A decision will be issued within four months of all documents being submitted stating what fire precautions need to be put in place. Once the decision has been issued, the Secretary of State has no further jurisdiction in the case. Any matters that follow should be referred back to the enforcing authority.
If the fire and rescue service think a determination might cause a delay which would put people’s safety at an unacceptable risk, they can decide not to seek a determination and require enforcement. In this case, the only recourse for the occupier is to appeal the enforcement order to the courts.
4.3 Enforcement notice
If an alterations notice is not complied with then the next step is for the fire and rescue service to serve an enforcement notice, under article 30 of the Order, which means the occupier has to make specific improvements in a specific timescale.
An enforcement notice may be challenged in a magistrates’ court by appeal which must be made within 21 days of receipt of the enforcement notice. Penalty for non compliance is detailed in Article 32 of the order as (a) on summary conviction to a fine not exceeding the statutory maximum; or (b) on conviction on indictment, to a fine, or to imprisonment for a term not exceeding two years, or to both.
4.4 Prohibition notices
Under article 31 of the Order where the enforcing authority is of the opinion that use of premises involves or will involve a risk to relevant persons so serious that use of the premises ought to be prohibited or restricted, the authority may serve on the responsible person or any other person mentioned in article 5(3) a prohibition notice.
A prohibition notice will state that the use to which the prohibition notice relates is prohibited or restricted to such extent as may be specified in the notice until the specified matters have been remedied.
A prohibition or restriction contained in a prohibition notice takes effect immediately it is served if the enforcing authority is of the opinion, and so states in the notice, that the risk of serious personal injury is or, as the case may be, will be imminent, and in any other case takes effect at the end of the period specified in the prohibition notice.
Penalty for non compliance is detailed in Article 32 of the order as (a) on summary conviction to a fine not exceeding the statutory maximum; or (b) on conviction on indictment, to a fine, or to imprisonment for a term not exceeding two years, or to both.
4.5 The appeals process
Article 35 details the appeals process: -
- A person on whom an alterations notice, an enforcement notice, a prohibition notice or a notice given by the fire and rescue authority under article 37 (fire-fighters’ switches for luminous tube signs) is served may, within 21 days from the day on which the notice is served, appeal to the court.
- On an appeal under this article the court may either cancel or affirm the notice, and if it affirms it, may do so either in its original form or with such modifications as the court may in the circumstances think fit.
- Where an appeal is brought against an alterations notice or an enforcement notice, the bringing of the appeal has the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal.
- Where an appeal is brought against a prohibition notice, the bringing of the appeal does not have the effect of suspending the operation of the notice, unless, on the application of the appellant, the court so directs (and then only from the giving of the direction).
- In this article “the court” means a magistrates’ court.
- The procedure for an appeal under paragraph (1) is by way of complaint for an order, and —
- a) the Magistrates’ Courts Act 1980 applies to the proceedings; and
- b) the making of the complaint is deemed to be the bringing of the appeal
- A person aggrieved by an order made by a magistrates’ court on determining a complaint under this Order may appeal to the Crown Court; and for the avoidance of doubt, an enforcing authority may be a person aggrieved for the purposes of this paragraph.
In summary, statutory restrictions such as a prohibition notice preventing occupation of the whole or part of the hereditament may be taken account of in the valuation but only to the extent that it would influence the hypothetical landlord & tenant in determining the rent. Private and. or personal obligations and restrictions under the fire regulations are to be disregarded as outside the rating hypothesis.