Fire safety - existing non-residential premises: practical guidance

Chapter 1: Preface

Introduction

1. In 2006, the Fire (Scotland) Act 2005 (“the 2005 Act”) introduced changes to fire safety law in Scotland and repealed previous fire safety legislation. This guide has been produced to assist those who have responsibility under this Act for ensuring fire safety in non-residential premises in Scotland. In addition, the guide has a statutory basis for the Scottish Fire and Rescue Service (“SFRS”) and local authorities, as enforcers.

2. This Scottish Government guidance provides practical fire safety advice for existing non-residential premises. It supersedes the previous 2017 version.

Scope

3. The guidance in this document is applicable to general fire safety in existing non- residential commercial, industrial, transport, assembly, educational, day care or entertainment premises and to which Part 3 of the 2005 Act applies (known generally as ‘relevant premises’). The guide does not apply to premises used for sleeping accommodation and does not apply to premises used for child-minding, for which other guidance has been produced^[1].

4. Much of the guidance in this document relates to buildings. However, the requirements of fire safety law also apply to other structures, external areas and open air sites.

5. This guide applies to existing premises and is not a design guide for new build. New buildings must be designed to the mandatory functional standards under the Building (Scotland) Regulations 2004. Similarly, buildings which undergo extension, structural alteration or conversion (as defined in building regulations) should also meet the standards (and be subject to building warrant approval, where required). Design guidance in respect of building regulations is contained in the Scottish Building Standards Technical Handbook for Non-Domestic Buildings.

6. There are types of premises which, due to their complexity and use, require or will have involved specialist consideration for fire safety. There are also buildings where fire safety engineering has produced bespoke fire safety measures. In these cases, specific sector information and advice may be applied and this guide used for general principles. Examples are large transport hubs, enclosed shopping centres, and certain industrial premises which contain special processes or hazards such as high bay warehouse, automated retrieval system, explosives, petrochemical plant; and power generation.

7. In major sports grounds, fire safety is closely related to other aspects of spectator safety and reference should also be made to the document commonly known as the Green Guide - ‘Guide to Safety at Sports Grounds’.

Fire Safety Law

8. Part 3 of the 2005 Act, along with the Fire Safety (Scotland) Regulations 2006, sets out the fire safety duties in respect of the majority of non-domestic premises in Scotland.

9. The legislation requires the provision of fire safety measures; including risk reduction measures, means of fire warning, fire-fighting, escape, staff training and instruction, as well as emergency procedures. It sets out fire safety responsibilities and seeks to ensure the safety of persons from harm caused by fire.

10. The list below is a summary of the general requirements and is not intended to be comprehensive; the remaining chapters provide guidance on how to comply but anyone in doubt about their legal obligations may wish to seek further advice;

• assessing the risk from fire;
• identifying the fire safety measures necessary as a result of the assessment of risk;
• implementing these fire safety measures, using risk reduction principles;
• putting in place fire safety arrangements for the ongoing control and review of the fire safety measures;
• complying additionally with the specific requirements of the fire safety regulations;
• keeping the fire safety risk assessment and outcome under review; and
• record keeping.

11. Underground railway stations and certain mainline stations^[2] in Scotland are additionally subject to the general fire safety provisions in the Fire Precautions (Sub- surface Railway Stations) Regulations 1989.

12. The general fire safety provisions in Part 3 of the 2005 Act take precedence over the terms and conditions imposed in relation to licences issued under other legislation. Section 71 of the 2005 Act states that terms, conditions or restrictions in such licences – including statutory certification or registration schemes – have no effect if they relate to fire safety requirements or prohibitions which are, or could be, imposed under Part 3. For example, fire safety in sports grounds is governed through Part 3 of the 2005 Act and not through sports grounds certification.

Who Must Comply with these Duties?

13. Employers and/or other persons who operate or have control of the premises to any extent are responsible for complying with the fire safety duties. This might include managing agents, landlords and tenants, factors, owners, and managers and staff. Contractors and volunteers working on site may also have some responsibilities through their degree of control or responsibility for fire safety. In this guide, persons with fire safety responsibilities are referred to generally as ‘dutyholders’.

14. Under fire safety law, dutyholders are required to take all reasonable measures regarding the safety of persons. Employers additionally have a specific obligation to ensure the safety of employees in the event of fire, so far as is reasonably practicable. This means that fire safety measures need to be taken to address risk, but not to the extent that the cost, effort and other disadvantages associated with the provision of fire safety measures would be disproportionate to the risk to life. In this respect, a judgement is made about the cost of measures being proportionate to the resulting risk reduction, not the capacity of a dutyholder to pay.

15. Where premises or responsibilities are shared, each employer, or other person who has control over any part of the premises must co-operate and co-ordinate to inform each other of risks and comply with fire safety law.

16. Failure to comply with fire safety law may constitute a criminal offence with a penalty of a fine or imprisonment.

Obtaining Advice on Fire Safety

17. The responsibility for undertaking and reviewing fire safety risk assessments and taking fire safety measures, rests with dutyholders.

18. Whilst dutyholders are usually best placed to know their premises, they will need to decide whether they, or their employees, have the capability to assess fire risk. They should also consider factors such as the size and use of the premises and the number and type of persons involved. If dutyholders do not have sufficient resources and skills, knowledge or experience to undertake a fire safety risk assessment themselves, they can arrange for a suitably qualified person or company to carry out an assessment on their behalf.

19. When looking to contract a fire risk assessor, it can be difficult to judge the competence of companies and persons who advertise their services. The fact that a person or company is operating in the fire sector or that someone has previous fire service experience, does not mean that they are a competent risk assessor.

20. Using registered or third-party certificated persons or companies to carry out fire safety risk assessments is one way to establish competence. The Scottish Government and SFRS recommend selecting an assessor or company that is third party certificated by a United Kingdom Accreditation Service (UKAS) accredited Certification Body or an assessor registered with a Professional Registration Scheme. SFRS maintains a list of recommended schemes on its website. SFRS has not assessed and does not endorse any individuals or companies participating in these schemes. Assessor participation in these schemes can offer a degree of assurance that the assessor (individual or company) has met the professional requirements. In selecting a fire risk assessor, their competence in assessing the building type in question should also be checked.

Who Enforces Fire Safety Law?

21. While responsibility for compliance with the legislation sits with dutyholders, there is provision in the legislation for an enforcing authority with enforcement powers.

22. The SFRS enforces Part 3 of the 2005 Act and relevant regulations for most non-domestic premises, with the following exceptions:

• In premises occupied by the armed forces or visiting forces - the Defence Fire and Rescue Service.
• In ships under repair or construction and in some construction sites - the Health and Safety Executive.
• In nuclear installations - the Office for Nuclear Regulation.
• In major sports grounds - the local authority.

23. The SFRS policy towards enforcement is proactive and it adopts an enabling approach to assist dutyholders in complying with their obligations.

24. Enforcement officers’ powers are listed in section 62 of the 2005 Act: they may do anything necessary to allow them to enforce the provisions of the legislation. This includes entering premises, inspecting, requesting information, records or assistance, copying or removing documents; carrying out measurements or tests; taking samples, dismantling articles, and taking possession of an article for examination or evidence.

25. If the SFRS is not satisfied with the outcome of a dutyholder’s assessment of fire risk, or the action taken by a dutyholder, or the fire safety measures in place, it may issue a letter which requests or specifies that certain action or measures be taken and may request that a dutyholder draws up an action plan for implementation of the measures.

26. Where an enforcement officer considers that additional fire safety measures are necessary in relevant premises, this decision should be based on the factors described in paragraph 14. It will assist the awareness of dutyholders if enforcement officers explain why the existing fire safety measures are not acceptable, and how additional fire safety measures will deliver improvement.

27. The SFRS has the power to take more formal action in certain situations. This could involve:

• Issuing an ‘Enforcement Notice’ that requires specified action to be taken;
• Issuing a ‘Prohibition Notice’ in cases of serious risk so that the use of all or part of the premises is prohibited or restricted until specified matters are remedied; or
• Reporting the matter for prosecution.

28. Additionally, the SFRS has power to issue an ‘Alterations Notice’ that requires the recipient to inform the enforcing authority before making specified changes to the premises.

29. Failure to comply with a notice issued by the enforcing authority or placing persons at risk of death or serious injury by failing to carry out any duty imposed by fire safety law is an offence.

30. Where there is disagreement between a dutyholder and the SFRS on compliance issues, the dispute may be suitable for referral for a determination. Dispute determination is a third party independent resolution arrangement. Information on this provision is available on the Fire Service Inspectorate website: HM Fire Service Inspectorate: dispute determination - gov.scot (www.gov.scot)

31. There is also a right of appeal to the court against a Prohibition Notice, Enforcement Notice or Alterations Notice, within 21 days from the date the notice is issued.

32. While the general fire safety measures required by the 2005 Act are enforced by the SFRS (or other enforcing authority), there are some matters that are enforced by the Health and Safety Executive or the local authority, under various pieces of health and safety legislation. Some examples are precautions relating to:

• Storage of flammable liquids.
• Ventilation systems to dilute or remove flammable gas or vapour.
• Selecting equipment that will not be a source of ignition.
• Maintenance of electrical equipment.

33. Certain premises which pose a risk of major accident are also subject to the Control of Major Accident Hazard Regulations 2015 (“COMAH”). Where COMAH applies, general fire safety is controlled through both the 2005 Act, by the appropriate enforcing authority, and also through COMAH by the Health and Safety Executive.

How to Use this Guide

34. The remaining chapters in this guide provide information on the assessment of fire risk, the reduction of risk and identification and implementation of fire safety measures. It is not necessary to follow the risk assessment method in this guide or the guidance on fire safety measures; other suitable methods and measures may be appropriate.

35. The fire safety measures described in this guide are principally benchmarks. When deciding what fire safety measures are appropriate for premises, the benchmarks can be used as a comparison against what exists in the premises. The benchmarks should not be applied prescriptively to premises, they are not minimum standards nor are they provisions that are deemed to satisfy the legislation. In each case, the measures adopted should be risk appropriate for the particular circumstances in which they are applied. A standard lower than the benchmark may be adequate, in other cases a standard above the benchmark may be necessary. The assessment of risk needs to be specific to the individual premises.

36. If persons feel unable to interpret this guidance, they should seek assistance from someone with technical knowledge. The SFRS as an enforcer of the legislation, cannot undertake a dutyholder’s risk assessment obligation. However, it has a statutory requirement to provide general advice on request about issues relating to fire safety and should be able to provide information and advice which will assist dutyholders to understand their obligations under the law.

37. While the principal purpose of this guide is to assist dutyholders in complying with their legal obligations, its contents constitute guidance given by Scottish Ministers to the SFRS and local authorities in terms of section 61(2) of the 2005 Act. The SFRS and local authorities are therefore required to take it into account in determining whether enforcement action may be necessary. They are also required to have regard to the Scottish Regulators’ Strategic Code of Practice.

38. Where an enforcement officer considers that additional fire safety measures are necessary in premises, this decision should be based on risk, taking likely cost benefit into account. It will assist the awareness of dutyholders if enforcement officers explain why the existing fire safety measures are not acceptable, and how additional fire safety measures will deliver improvement.

39. Nothing in this guide should be interpreted as permitting a reduction in the standard of fire safety measures where the measures have been incorporated to comply with Building Regulations. It is possible for a fire safety risk assessment to require a standard higher than that required by Building Regulations.

40. From October 2013, a Fire Safety Design Summary is recorded as part of the building regulation process. This may be a useful source of information to assist dutyholders with the safe operation of the premises and to inform the assessment of fire risk.