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Conference 2000 was hosted by O O'Loughlin, Chief Fire
Officer, Limerick City.
Papers presented included:
UNITED
STATES CODES
PAST®PRESENT®FUTURE
By
Patrick A. McLaughlin
McLaughlin
& Associates
REFORM
OF IRISH FIRE LAW – AN OPTION OR AN IMPERATIVE?
By
Damien
O’Mahony, BCL, LLM
Lecturer
in Law
University College Cork
UNITED STATES
CODES
PAST®PRESENT®FUTURE
By
Patrick
A. McLaughlin
McLaughlin
& Associates
The
purpose of this presentation is to familiarize the Irish Fire Community with the
United States Building and Fire Code system and the process that the U. S. has
gone through over the last five years to move to a single building and fire
code. The experience should assist
your organization as you contemplate a world standard for fire safety.
My
experience with building and fire code development spans twenty-five years.
I have participated as a fire official and as an impacted industry
member. Formerly, I served as the
Deputy Director of the California State Fire Marshal’s Office where I was
responsible for writing California fire safety standards.
Those standards addressed high-rise buildings, assembly occupancies, care
facilities, flammable liquids, fire extinguishers, etc.
For the last eighteen years, I have participated in all the International
Conference of Building Officials, Building Officials and Code Administrators,
Southern Building Code Congress, International Code Council and NFPA code
development processes representing the semiconductor, aerosol, paint and
hazardous materials industries among others.
Hopefully, I can pass on my observations from these experiences to assist
you in evaluation of the merits of a world standard.
top
To
accomplish that goal, I will address the U. S. Building and Fire Codes,
including a brief history, the content of the codes, how the documents are
currently developed, and the future of the codes in the U.S.
For the last fifty years, three U. S. building codes and four fire codes
have coexisted. The system has been
a regional system divided into the Northeast, Southeast and Western states.
The Building Code, developed by Building Officials, addresses how and
from what materials a building is to be constructed.
The Fire Code, used in tandem with the Building Code, covers how the
structure is maintained and operated. The
documents are developed through annual processes that insure openness, public
participation and fairness. During
the last five years, the code writing organizations have attempted to join
together and produce a single family of codes for the United States.
Though there have been problems and defections, the objective of a single
set of codes appears to be achievable with the possible exception of a competing
National Fire Protection Association set of codes. In conjunction with the
single set of codes, the U. S. is following the lead of Europe and New Zealand
in attempting to create an alternative performance-based system.
top
THE BUILDING
CODES
The
Building Code in the U. S. was first published in the early 1900’s. The first edition of the Uniform Building Code was published
in 1929. It and the other building
codes were originally insurance industry standards.
The codes have evolved to the present day where they are produced by the
Building Official’s organization with little insurance industry influence.
The organization and codes they publish are:
-
Building
Officials and Code Administrators (BOCA) – National Building Code
-
Southern
Building Code Congress International (SBCCI) – Standard Building Code
(SBC)
-
International
Code Council (ICC) – International Building Code (IBC)
Each
regional organization publishes a family of model codes. Local and state governments must adopt the documents in order
to enforce the codes. The Uniform
Codes are adopted by the thirty-three states west of the Mississippi; National
Codes are used in the Northeast from Chicago, Illinois, to New England while the
Standard Codes cover the South from Texas to Florida.
The
three regional building codes: UBC, NBC and SBC will not be updated
further. All development activity
has been suspended by the parent organizations.
Instead, the ICBO, BOCA and SBCCI have formed the International Code
Council and beginning this year, will jointly publish the International Codes,
specifically, the International Building and Fire Codes.
The
International Building Code was developed over a three-year period by five
committees from each region - exiting, structural, occupancy, fire safety and
general. The codes were dissected
and compared, and the text from one version was transferred to the IBC. Though simple on its face, this was a very difficult process
because no matter what provisions were selected, some group or organization was
negatively impacted. For example,
while dealing with building height and area, the decision was made to take the
most liberal requirements from one of the three codes. The reasoning for the approach was sound; i.e., if a building
of a certain height and area, housing a business occupancy, built out of a
certain material such as steel, has been built in one area of the country for
over 50 years without incident, then that building height and area should be
reasonably safe. Also, if a lesser
area and height were selected, then every existing structure in one region of
the country would be non-complying the day the ICC code was published. As a result, the concrete industry lost business, while the
steel and wood industries appeared to gain, because in some cases, it is less
expensive to build out of these products. Furthermore,
a segment of the regulatory community disagreed, and felt that the change
represented a reduction in safety simply because it was less restrictive.
Another major change that took place during the development of the IBC
was extensive reliance and acceptance of automatic fire sprinkler protection
based on BOCA’s experience. When sprinklers were provided, occupancy separation was
reduced, and fire resistance of the structure lowered.
These progressive changes would not have occurred without the movement to
a single code.
top
The
purpose of the Building Code is to “safeguard life and limb, health, property
and public welfare”. The codes
establish controls to limit the spread of fire, insure the building is
structurally sound, protect its occupants in place, provide an escape, and
provide a healthy environment. Limiting
fire spread is accomplished by the code through construction materials,
compartmentalization, building location and suppression.
Occupant escape or protection in place is insured by an egress system,
refuge areas, alarm and again, early suppression. Different uses of buildings are protected differently.
Assembly spaces have numerous egress controls while hazardous occupancies
are heavily compartmentalized. One
example is the “H-5” semiconductor occupancy.
The building is usually of type I concrete construction, all different
uses are separated by one or two hour fire rated barriers, the facility is
sprinklered, 1-hour corridors are provided and travel distance to exits are
limited and fire and hazardous materials alarms are provided.
The
content of the Building and Fire Codes address all aspects of building
construction, maintenance and use. The
Building Code is normally enforced by the Building Official.
He has authority over new construction and remodeling.
His department reviews plans and inspects the construction for
compliance. All the building codes
in the U. S. have what is called a “common code” format.
That is the documents are organized similarly so that a designer or
enforcer working in different parts of the country with a different code can at
least find the requirements of a specific occupancy in the same general sections
of the document. The first
few chapters of the Building Code address administration and definition. In the
next six chapters, major construction issues are proscribed.
Building size, height, construction materials, separation of uses by
compartmentalization, and exterior wall construction due to location on the
property, all serve to limit the spread of fire, a major focus of the Building
Code. Most of these physical
barriers requirements are reduced if the building is provided with automatic
fire suppression. The requirement
for fire suppression, fire alarm, and standpipes are all found in Chapter 9.
Each of the building codes has automatic sprinkler system standards. They
all reference the National Fire Protection Association Pamphlet 13, which for
all practical purposes is the U.S. universal standard for fire sprinklers.
The codes differ in what occupancies sprinklers are required, and what
reduction in protection is allowed.
top
Egress
is addressed in Chapter 10. The
construction details of the components of the exit systems, i.e., stairs,
corridors, and doors, are provided. Occupant
safety is again tied to use. Assembly
spaces require more exits, greater width and fire protection. In hazardous
occupancies, travel distance is limited. The egress provisions are similar in all codes because they
all have their origins in National Fire Protection Association Pamphlet 101, the
Life Safety Code. In fact, the
first edition of the International Building Code embraces all the concepts from
101. The remainder of the
building code deals with structural and environmental issues.
THE FIRE CODES
top
The
Fire Codes, with one exception, are aligned with the three Building Codes.
They are published by and titled:
-
Western Fire
Chiefs Association (WFCA) and ICBO – Uniform Fire Code (UFC)
-
BOCA –
National Fire Code (NBC)
-
South East
Association of Fire Chiefs (SEAFC) and SBCCI – Standard Fire Code (SFC)
-
National
Fire Protection Association (NFPA) – National Fire Protection Association
Standards and Pamphlets (NFPA1)
-
International
Code Council (ICC) – International Fire Code (IFC)
The
three regional codes UFC, NFC and SFC were first published in the early
1970’s. The first IFC edition was
published in March of 2000. The
NFPA standards, which have been around for 100 years, were used as the basis for
much of the regional fire codes. For
example, the UFC flammable liquids chapter contains much of the text of NFPA 30
Flammable and Combustible Liquids Code.
The
International Fire Code development began as a cooperative effort between all
fire code publishers, with the additional participation of NFPA.
However, one year into the process, NFPA withdrew.
As a result, the IFC is a compilation of the NFC, SFC and UFC, and
partially NFPA standards. In fact, the product included mostly UFC text, because the
UFC was the most comprehensive and current fire code left after NFPA exited from
the process.
top
NFPA
has subsequently purchased the Uniform Fire Code from the Western Fire Chiefs
who had joint ownership with ICBO and will combine the UFC with NFPA 1, their
Fire Prevention Pamphlet. They
intend to compete with the IFC. To
date they have had some success in three western states, Florida and portions of
New England. Nevertheless,
negotiation continues between NFPA and ICC concerning a joint development of a
single fire code. In my opinion,
this rift will be short lived and within the next few years a single fire code
will evolve. There is too much
industry and government backing for a single code for the goal not to become a
reality.
The
International Fire Code purpose is to establish minimum standards for fire and
explosion protection through regulations of storage, handling or use of
materials. The IFC also establishes
all the fire suppression and alarm requirements.
This is a radical departure from the previous regional code systems where
these requirements were specified in the Building Codes, and controlled by the
Building Official. Now the Fire
Official determines when, where, and how sprinklers are to be provided.
Those requirements are then printed in the International Building Code
and enforced by the Building Official when the building is constructed.
top
The
Fire Code is a “maintenance” document.
It is intended to address existing buildings and ensure that those
buildings continue to be operated safely after they are built.
As a maintenance document, the fire code insures that those elements of
the building that are critical to limiting fire spread and insuring safe egress
are operable. Firewalls,
smoke barriers, stair enclosures, corridors, etc. are required to be maintained
for the life of the building. The
Fire Official primarily enforces the code after the building is occupied.
Therefore, for the system to work properly, the codes must be companion
documents. For example, the
building and fire code need to have the same exiting requirements.
That is why the UFC is used with the UBC and the IFC must be used with
the IBC.
top
The
International Fire Code content is organized similarly to the International
Building Code where similar topics are covered.
Administration and authority are found in Chapter 1.
Chapters 3 - 8 address building issues, but also cover emergency
planning, ignition sources and general requirements.
Again, Chapter 9 regulates fire protection systems, and Chapter 10
egress. The egress requirements
must be no more restrictive than those found in new construction, otherwise,
after a building is newly constructed and turned over to the fire department for
maintenance, it would be a non-complying structure.
Again, the codes must work together.
The
remainder of the IFC addresses special hazards and hazardous materials.
Special hazards include chapters on high piled storage, service stations,
flammable finishes, welding, aviation facilities, dry cleaning, organic coatings
manufacture, tents, tires and semiconductor facilities.
Hazardous materials requirements are the same as those found in the UFC
in Article 80 however, after the general requirements are each addressed
individually. The subject of
flammable and combustible liquids and aerosols are covered in great detail. Other topics addressed include compressed gas, corrosives,
cryogenics, explosives and fireworks, toxics and highly toxics, LPG, oxidizers
and pyrophorics.
top
THE CODE
DEVELOPMENT PROCESS
Any
discussion of codes would not be complete without an explanation of how these
codes are developed. There are two
processes, the International Code Council system and the National Fire
Protection Association system. The
difference between the two systems is primarily who can vote.
ICC only allows building and fire officials (public employees), to vote
on the final proposal while NFPA allows anyone of its members, including
industry to vote. Otherwise, the
systems are similar. Any interested
party can submit code change proposals. Change
proposals are published and distributed to everyone that requests receipt.
A committee hearing is conducted. Again,
anyone can attend and give testimony. NFPA
is a little less accessible in the committee phase because though public
testimony is allowed, it is not encouraged.
Committee actions are then published and can be challenged.
Challenged items are then reheard before the membership at the annual
meetings, and the committee actions ratified with a membership wide vote.
Again, in the IFC, only public officials vote, but in the NFPA, all
members vote, including industry representatives.
The
fire service is very active throughout the United States in the code development
process. They participate in the
International Building Code hearings. They
sit on code development committees, and Fire Officials appear and speak at all
the hearings. Their involvement in
the International Fire Code goes beyond mere participation to include actual
management of the entire code development process. The IFC is coordinated by the fire services through a
subgroup of the ICC named the Fire Code Council.
Their group is composed of representatives from each of the model code
groups: BOCA, ICBO and SBCCI. ICBO
is represented by the Fire Service Section, and SBCCI by the South Eastern
Association of Fire Chiefs. Also,
the National Association of State Fire Marshals and the International Fire
Chiefs Association have members. The
council establishes the policy for the IFC, and recommends to the ICC Board how
the ICC system is to function. The
fire service participates in the code hearings as individuals, state
organizations and as the Western, Eastern and Southern regional groups.
Many states have associations, i.e., Arizona Fire Chiefs, California Fire
Chiefs, Alabama Fire Chiefs who fund participation by their respective Fire
Marshals section. The relevant
point is that in the ICC process, the fire service the final say about what goes
into the model codes.
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THE FUTURE
In
conclusion, the U. S. Code system is in flux.
In the last five years a significant effort to move to a single code has
been undertaken with much success. The
United States still has a way to go before a single set of codes becomes a
reality. However, the commitment
has been made and the process put in place.
Many positive things occurred during the process, which should serve to
encourage any effort toward a world standard.
My experience working with the Irish code system is that all these
regulations are similar because the objectives such as limiting fire spread and
occupant safety are the same. There
is no doubt that one element missing from the U. S. effort is the benefit of the
hundreds of years of experience found in the European system.
Among
the positive results that were achieved from the effort to move to a single set
of codes were:
-
Incorporation
of current technology
-
Refocus on
meaningful requirements and elimination of archaic language
-
Movement
toward fire sprinklers
-
Movement
toward performance-based codes
-
Expanded
participation by the fire community
These
results alone make the effort to move to a single set of codes worthwhile.
top
Fire
prevention in the United States is in transition.
It is moving from an art to a science, from a system based on experience
to a system based on engineering principles.
The development of a single set of codes is just one step in that
transition.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
REFORM
OF IRISH FIRE LAW
– AN OPTION OR AN IMPERATIVE?
Damien
O’Mahony, BCL, LLM
Lecturer
in Law
University
College Cork
top
Ireland, like
most other developed nations has, over time, developed its own body of
legislation which relates to the prevention or control of emergency situations.
Where such situations do arise the legislation generally seeks to provide a
legal framework within the emergency services must operate. The problem with
measures designed to deal with emergency situations is that those measures
themselves are often developed in response to a particular tragedy or disaster
whose consequences, both immediate and perceived long term, must be immediately
addressed. It will be apparent that such circumstances may not always provide
the best environment for the conception and development of what are extremely
important controls, guidelines and initiatives.
The
body of legislation which governs the operation of the fire services in Ireland
is made up primarily of three Acts: the Fire Services Act, 1981, the Building
Control Act, 1990, and the Safety, Health and Welfare at Work Act, 1989. The
issues which this raft of legislation seeks to regulate are complex ones but
today we will concentrate on the Fire Services Act and most particularly the
efficacy of the enforcement powers provided for in that Act.
The
1981 Act was introduced in some haste following the Stardust Tragedy in
February, 1981 and followed the existing pattern of formulating legislation in
reaction to particular disasters.While all legislation is, to some extent,
reactive in nature, the speed with which the 1981 Act was introduced was most
likely due to the public outcry which followed the Stardust tragedy. This hasty
implementation has left a question mark over how well thought-out the 1981
Act’s provisions were. Eighteen years have passed since the introduction of
the 1981 Act. In that time many technological, ecological, social and
administrative changes have taken place which relate to fire safety and
prevention and which warrant recognition in a legal context. A number of the
provisions which were included in the 1981 Act have proved to be less than
effective in practice and are in need of reform. It appears that, at the time of
its conception, the opportunity to address certain issues in the 1981 Act was
not availed of, leaving the Act in its present form with a number of
identifiable lacunae. Despite some innovative provisions contained in its
sections, I think it fair to say that it is widely acknowledged that the Act as
it stands today is ineffective and badly in need of reform or renewal.
top
The
ultimate goal of the fire services in Ireland is the reduction of loss of life
and property due to fire. In this context, the importance of adequate and up to
date legislation governing the emergency services cannot be over-stated. It is
unfortunate that shortcomings in such legislation are most often highlighted
only when a substantial tragedy has occurred involving serious economic loss or
loss of life. Approaching the issue at a time when the examination process is
not driven by an emotional or political need to react to some tragic occurrence
may provide the clarity of purpose to formulate proposals which may help prevent
such misfortunes more effectively in the future. This is the challenge that we
face at this very moment. As a society are we to wait for another tragedy of
Stardust proportions so that we may be given the satisfaction of saying “I
told you so” or are we to grasp the alternative of directing all our available
resources towards creating meaningful and effective changes to our legislation
now, where they will have a preventative rather than a curative role to play in
the fight against fire. I submit to you that, as fire professionals you are
morally bound to meet this challenge of bringing our most appropriate and most
recent resources to bear on the dynamic problems which such issues present.
top
The Fire Services Act, 1981
React in haste, repent at leisure.
The
Fire Services Act, 1981 lies at the heart of fire-fighting and fire safety in
Ireland today. Following the horrific tragedy of the fire at the Stardust Club
in Artane, the Government moved quickly to introduce new fire legislation. The
new Fire Services Act came into effect on December 16, 1981.
Fire Safety and prevention
Fire
fighting has traditionally provided the fire services with its ‘best press’.
Our image of fire-fighters as being men and women who are daily prepared to put
their lives at risk in the interest of our safety and well being is, at once,
both appealing and comforting. While the importance of fire fighting is
undeniable, it is unfortunate that its heroic glamour has tended to overshadow
its more prudent sibling - fire prevention. Fire prevention does not possess the
romance which fire fighting does. Neither are its effects as immediate nor as
tangible. It can be a slow process rather than one which provides a relatively
immediate result. For these reasons, and others which are considered below, it
appears that fire prevention is the poor relation in the fight against fire.
Common
sense, of course, dictates otherwise. The assertion that it is far better to
prevent a fire than to fight one does not permit argument. There may, of course,
be certain rare circumstances in which fire prevention is not an option but,
from an economic, social and human welfare point of view, successful fire
prevention must be preferable to fire fighting in all circumstances.
top
Statutory duty placed on certain
individuals
The
Fire Brigades Act, 1940 did not impose any statutory obligations in respect of
fire safety on private individuals. In its recommendations, the Stardust
Tribunal recommended that the obligation for fire safety, especially in places
of public assembly, should rest on four parties: the owner, the occupier, the
designer of the building and the regulating authority.
In
one of its more innovative provisions, the Fire Services Act, 1981 addressed the
issue of individual responsibility for fire safety and embodied part of the
Report’s recommendation in the provisions of section 18, subsection (2) of
which states: -
(2).
It shall be the duty of every person having control over premises to which this
section applies to take all reasonable measures to guard against the outbreak of
fire on such premises, and to ensure as far as is reasonably practicable the
safety of persons on the premises in the event of an outbreak of fire.
This
section succeeded in covering both owners and occupiers by the inclusion of the
phrase ‘every person having control over premises’.
The
1981 Act went further however and also placed a duty on persons merely in
attendance at a premises to behave in a safe manner:
(3).-
It shall be the duty of every person, being on premises to which this section
applies, to conduct himself in such a way as to ensure that as far as is
reasonably practicable any person on the premises is not exposed to danger from
fire as a consequence of any act or omission of his.
top
Contravention
of this section gives rise to a criminal offence on indictment and places a
weighty responsibility on all persons to guard against an outbreak of fire. It
is also arguable that an action for damages based on civil liability might
successfully be grounded on the provisions of section 18.
Potentially dangerous buildings
Section
19 developed the concept of a ‘potentially dangerous building’.
This
section defines the circumstances which will make a building ‘potentially
dangerous in the event of fire’. One must assume that it is found here rather
than in the definition section at the beginning of the Act because the
draftsperson wished it near to sections 18 and 20. There is no doubt that it is
important to read all three sections as a whole.
19.-(1) In this Act “potentially dangerous building” means any building
which would, in the event of a fire occurring therein, constitute a serious
danger to life for any of the following reasons-
(a)
the fact that large numbers of persons habitually resort thereto or are
accommodated therein;
(b)
the absence of any or any adequate appliances or fittings-
(i)
for extinguishing fires occurring in the building,
(ii)
for enabling the occupants to escape on the occurrence of a fire
(iii)
for the automatic detection of an outbreak of fire,
(iv)
for giving warning to persons in case of fire,
(v)
for securing that the means of escape can be safely and effectively used
at all times, or
(vi)
for emergency lighting
(c)
the flammable nature of the materials of which the building is made;
(d)
the flammable nature of the furniture, furnishings and fittings in the
building;
(e)
the absence of adequate means of egress from the building;
(f)
the absence of any or any adequate notices as to the procedure which
should be followed in the event of fire;
(g)
the flammable, explosive or potentially explosive nature of anything
used, stored or deposited within the building;
(h)
the fact that a fire therein would be likely to spread rapidly within the
building or to other premises;
(i)
the fact that any power supply or lighting system with which the building
is provided is defective, inadequate or inadequately maintained;
(j)
the fact that any heating or ventilating system with which the building
is provided is defective or inadequately maintained or presents a fire hazard;
or
(k)
any similar reason.
top
(2)
In this section “building” includes any part of a building but does
not include-
(a)
premises consisting of a dwelling house occupied as a single dwelling;
(b)
premises constituting a factory within the meaning of the Safety in
Industry Act, 1955 and 1980;
(c)
premises consisting of a store subject to licensing under regulations
made under the Dangerous Substances Act, 1972;
(d)
a magazine, store or registered premises within the meaning of the
Explosives Act, 1875; or
an
oil jetty within the meaning of regulations under the Dangerous Substances Act,
1972.
Owners
or occupiers of buildings which fall into the categories outlined above may be
served with a Fire Safety Notice, by the fire authority, under section 20 of the
1981 Act. Such a notice can prohibit the use of a building or any part thereof,
or prohibit the use of a building or any part thereof for any specified purpose.
A Fire Safety Notice may impose on the owner or occupier of a building,
requirements relating to fire safety as outlined in section 20(3)(a)-(h).
A
Fire Safety Notice may be appealed to the District Court by an aggrieved party
under certain defined headings.
It
would seem then, that the Act had established an effective framework within
which to ensure fire safety in specific types of buildings. Section 18
establishes the responsibilities of persons in ownership, occupation or
attendance at various types of defined premises. Section 19 defines the various
conditions under which a building may be defined as being potentially dangerous.
Section 20 provides for the service of a Fire Safety Notice on such buildings.
The system should have worked well.
top
In
practice however, these three, most essential sections have displayed flaws of
character which have diluted the intended strength of these provisions and
impair the efficiency of the Act as a whole.
Obstacles to effective enforcement
‘In the event of fire’
Both
sections 18 and 19 of the 1981 Act contain similar phrases whose interpretation
may undermine the intended effect of this entire part of the Act. Those phrases
are italicised hereunder:
(18)(2)
It shall be the duty of every person having control over premises to which this
section applies to take all reasonable measures to guard against the outbreak of
fire on such premises, and to ensure as far as is reasonably practicable the
safety of persons on the premises in the
event of an outbreak of fire
(19)(1)
In this Act “potentially dangerous building” means any building which would,
in the event of a fire occurring therein, constitute a serious danger to life of
any of the following reasons…
top
These
phrases recently came under scrutiny in D.P.P.
v. Eric Treacy, a prosecution taken by the Gardaí under section 18 of the
1981 Act. On the May 14, 1995, the Gardaí visited the defendant’s Cork City
night-club, known as ‘Elroys’, and determined that the club was overcrowded.
As a result, Mr. Treacy, the night-club’s owner, was charged that, being a
person in control of a premises, being a premises described in section 18(1), he
had “failed to take all reasonable measures to guard against
the outbreak of fire on such premises and to ensure as far as reasonably
practicable the safety of persons on the premises in the event of an outbreak of
fire contrary to section 18(2) of the Fire Services Act, 1981.”
Counsel
for the defendant, responding to these allegations, argued, inter alia, that his
client was being prosecuted under the wrong section. This assertion was based on
the fact that section 37 of the 1981 Act states in relevant part: -
37.
(1) The Minister may make
regulations providing for the precautions to be taken in premises to which
section 18 applies for the protection of persons and property against risk by
fire …
(3)
The regulations may, without prejudice to the generality of the foregoing
subsections, specify requirements with regard to any or all of the following
matters- …
(j)
the maximum number of persons who may be in the premises or any
part thereof any one time;
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Counsel
for the defence stated: -
Section
37 to my mind contemplates that there were regulations to be made by the
Minister in relation to such matters as overcrowding … I could find no such
regulations. … I am saying the state are stretching a point to prosecute my
client [for overcrowding] under section 18(2). … That section to me is talking
of a prosecution after the event of fire.
As
stated in the last sentence above, Counsel argued that the obligations of
section 18(2) could only be applied where a fire had already broken out.Murphy
J. was inclined to agree with counsel for the defence’s submissions and made
the following observations in respect of section 18(2):
What
section 18(2) says is that it is the duty of every person…to ensure…that if
a fire breaks out, the safety of persons on the premises as far as is reasonably
practicable in the event of an outbreak of fire. I think that subsection should
say in contemplation of the event of an outbreak of fire or something like that.
I question the value of this section at all unless a fire breaks out and you can
show that there was overcrowding and the person didn’t take all steps that
were reasonably practicable … I don’t think the prosecution brought is
covered.
With
respect to the argument relating to section 37 the learned judge remarked: -
I
am not responsible for the section, [18(2)], being worded badly… and it does
seem to me that when it was worded it was in contemplation of regulations being
made which would nominate the number of persons that could be on the premises
and that if it did so and there were more, then there was a breach under the
Act.
top
These
passages indicate that Murphy J. considered that the imposition of the
obligations of section 18 (2) was contingent on an actual outbreak of fire
occurring and that they could not be invoked where the safety of persons would
have been compromised if a fire broken out. It is submitted with respect, that
such an interpretation is incorrect. While accepting that the sections are
etymologically ambiguous, Murphy J’s interpretation of section 18 (2) must
give rise for concern. The rules of statutory interpretation indicate that, if
the Literal Rule, when applied, leads to an absurdity, then the Golden Rule must
be applied. The Golden Rule requires that the court must look at the statute as
a whole in an effort to determine the original intent of the Legislature in
creating the enactment.
The
suggestion inherent in the learned judge’s remarks, that a fire should first
take place before the section could be invoked, is entirely at odds with the
stated intentions of the Act. The preamble to the Act states: “AN ACT TO MAKE
PROVISION FOR…THE PROTECTION… OF PERSONS AND PROPERTY…” The protection
of persons and property can hardly be achieved by concluding that one of the
Act’s main statutory obligations with regard to fire safety only becomes
operational in the event of a fire occurring. It must also be pointed out that
section 37 does not impose any obligation on the Minister to introduce
regulations relating to overcrowding or any other matter. The language employed
by that section is discretionary. It may also be reasonably argued that the case
was wrongly decided and that the judgment is unlikely to be followed. Be that as
it may, the decision in Treacy has shown that careless drafting can render a
statutory provision open to such interpretations and practically unworkable.
There
can be no doubt that the section would certainly benefit from a revised wording
which would positively exclude such interpretations in the future.
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Section 20 - Fire Safety Notice
The
idea of a Fire Safety Notice was not a concept unique to the 1981 Act. Section
20 is a reworking of section 7(2) of the Fire Brigades Act, 1940 which had
originally introduced the concept of a Fire Precautions Notice. It will be
apparent that section 20, like its predecessor, was intended to be the workhorse
of this particular enactment. This was the means by which the requirements of
fire authorities could be conveyed, in an official manner, to owners and
occupiers of properties which fell short of acceptable fire safety standards.
Apart from the power to apply for a High Court injunction under section 23,
there is no other procedure in the 1981 Act for requiring that certain steps be
taken by owners or occupiers in relation to fire safety.
One
would expect, therefore, that the section would be invoked on a frequent basis.
However, this has not been the case.
On
the February 21, 1983, a mere 14 months after the 1981 Act had been enacted, the
Department of the Environment issued Circular Letter Fire 5/83. The Letter
stated that, following a query from a fire authority, the Minister for the
Environment had “obtained additional advice concerning the interpretation of
section 20.” The attached advice stated that the nature of the original query
was
…
whether or not a fire safety notice issued under section 20 (2) (b) can specify
a time limit (in accordance with section 20 (6)) for the taking of precautions
specified by a fire authority.
It
is easy to see why an anxiety in relation to this provision had arisen amongst
fire authorities. A Fire Safety Notice may only be served on what is termed a
‘potentially dangerous building’. A potentially dangerous building must, by
its very nature, constitute a serious danger to life.Allowing such a building to
continue to operate, for what may be termed ‘a grace period’, is not only
foolhardy but one which may ultimately expose a fire authority to accusations of
negligence.
Not
surprisingly, therefore, the Department’s advice went on to say: -
The
Minister is advised that it is not possible to specify a time limit in respect
of the taking of such precautions. In effect this means that the use of a
building (or a specified part thereof) for a specified purpose is prohibited
once the notice takes effect in accordance with section 21 (5). It is therefore
not possible to delay the prohibition of use beyond the date on which the notice
takes effect. However where a notice imposes requirements of the type outlined
in section 20 (3) it is possible to impose a time limit for the compliance with
those requirements.
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What
this means in practice is that, on the advice of the Department of the
Environment, where a Fire Safety Notice prohibits the use (or the use for a
particular purpose), of a building or any part of a building, no extra period,
beyond that which it takes for the Notice to come into force, can be allowed by
the fire authority within which works might be carried out by the owner or
occupier. This, in effect, makes it inevitable that businesses
have to close down, albeit temporarily. Such advice undoubtedly
restricted the flexibility with which Local Government Managers must have hoped
this section would operate.
The
Circular Letter also states that “… where a notice imposes requirements of
the type outlined in section 20 (3) it is possible to impose a time limit for
the compliance with those requirements”. Section 20 (3) states:
(3)
A fire safety notice may impose on the owner or occupier of a building
requirements as to –
(a)
the
provision and maintenance of exit signs, emergency lighting and notices as to
the procedure to be followed in the event of fire;
(b)
the
arrangements to be made for the provision and maintenance of equipment and
fittings for fire detection, fire prevention, the extinguishing of fires, the
giving of warning in case of fire, and for securing that the means of escape can
be safely and effectively used at al material times;
(c)
the
installation, maintenance and use of the power, lighting, heating and
ventilating systems of the building;
(d)
the
arrangements to be made for the safe storage of flammable, explosive or
potentially explosive articles or materials used, stored or deposited in the
building;
(e)
the
measures to be taken for securing that persons employed in the building receive
appropriate instruction or training in fire safety, and in what to do in the
event of fire and that records are kept of such instruction or training;
(f)
the
holding of fire safety evacuation drills at specified intervals, and that
records are kept of such drills;
(g)
the
nomination of an appropriate person or persons employed in the building to have
responsibility for fire safety measures in the building; and
(h)
limiting
the number of persons who may be in the building at any one time.
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Allowing
a time period to be specified for compliance with a Fire Safety Notice served
under Section 20(3), but not allowing a time period for a Fire Safety Notice
served under section 20(2), seems to imply that there are differing degrees of
‘potentially dangerous buildings’. This suggestion, of course, has no legal
basis whatever. The phrase ‘potentially dangerous building’ is given one
definition, and one definition only, in section 19(1), viz: “… any building
which would, in the event of a fire occurring therein, constitute a serious
danger to life
for
any of the following reasons …” A property on which
a Fire Safety Notice is served under section 20 (3) is no less a
‘potentially dangerous building’ than one on which a Fire Safety Notice is
served under section 20 (2). Opting to allow a period within which works might
be undertaken indicates the making of a judgment on the part of the fire
authority that there is a lesser risk to life in the event of fire occurring in
that premises than in another - a dangerous assumption indeed.
The
application of section 20 underwent a second revealing illumination in the case
of Transactus Investments Limited v The
Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin. This
judgment was in response to a case stated to the High Court by the then
President of the District Court, District Justice Thomas F. Donnelly. The case
stated enquired: -
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Whether
on the hearing of an appeal against a Fire Safety Notice under the provisions of
Section 20 (2) (b) of the Fire Services Act, 1981 when the evidence is that all
of the precautions specified in such Notice have been taken to the satisfaction
of the fire authority I should annul the Notice or confirm it?
In
reply, Murphy J. stated: -
…it
is abundantly clear that a Fire Safety Notice may impose negative, as well as
positive, requirements and, more particularly, may impose requirements of a
continuing nature in addition to, or as an alternative from, an act to be
performed once and for all. Subsection 3 of Section 20 (where that subsection
applies) speaks expressly of requirements with regard to the “maintenance of
exit signs, emergency lighting and notices”; and maintenance of equipment and
fittings for fire detection, fire prevention, the extinguishment of fires and
indeed “limiting the number of persons who may be in a building at any one
time”. Not only are these and other express statutory provisions clearly
continuing in their express terms but it would be meaningless to the point of
absurdity to require that a particular precaution should be taken or a security
device installed and having done so to permit the precaution to be removed. …
there is no provision within the Act for a Fire Safety Notice expiring or
becoming inoperative on the grounds that particular work thereby required to be
carried out has been performed.
In
light of the decision of Murphy J., fire authorities were now faced with a
situation where if they chose to serve a Fire Safety Notice on a premises under
section 20 (2) it would have immediate effect and would remain attached to the
property ad infinitum. This must have presented a most unpalatable scenario to
City and County Managers. As Collins points out: -
While
councils are frequently in dispute with tenants, ‘developers’ and others,
managers are reluctant to go to court. Their own skill and preferences are
negotiation and reconciliation of disputes with an eye to social and political
considerations. In their training, gained by experience at various levels, the
stress is on knowing the law rather than using it.
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One
can readily appreciate that the newly revealed inflexible nature of section 20
would not sit well with such a pragmatic approach to management as that outlined
above. On the subject of deciding whether to prosecute Collins states:
[Managers]
take professional legal advice as a technical function only. As one manager put
it: ‘Lawyers only tell you why you can’t do things, never how to do them’.
Collins
describes the opinion given by one particular county manager as follows: -
…
The decision to prosecute was a managerial one. The manager himself did not seek
legal advice unless a controversy broke out because he realised he needed to
sail very close to the legal wind quite often.
This
comment will come as no surprise to those familiar with the workings of local
government. Managers walk an administrative tightrope. On the one hand, they are
chief executives of ‘development corporations’, as Sean Lemass put it, and,
as such, are expected to facilitate and promote development within their
functional areas. On the other hand, they are charged by law with executing a
vast number of regulatory functions, from planning, to building control, to fire
safety
It
appears that the application of present arrangements with regard to section 20
is too inflexible when one considers the complex situations which a fire officer
is likely to experience when carrying out inspections on premises. The
inspection of a premises by a fire officer may expose differing degrees of
gravity in contraventions of the 1981 Act. The inspecting officer may categorise
the physical conditions he or she experiences as being serious, moderate or
minor. The fire safety management may be excellent, sloppy or non-existent. The
owner’s attitude may vary from one of apology to unconcern, (or anything in
between). Based on a consideration of the circumstances found, the fire officer
will exercise a judgment and will generally categorise the situation as one of
either low, medium or high risk. A high risk premises will, or at least should,
attract a Fire Safety Notice under section 20. For most medium to low risk
premises, however, a section 20 Notice is most probably excessive. A separate
and more flexible mechanism should be introduced for circumstances such as
these. The power to give advice under section 18(2) falls short of satisfying
this need. The introduction of a Warning Notice would formalise the existing
power to advise in such situations. If there was a failure to comply with the
Warning Notice, a Fire Safety Improvement Notice should be served on the
owner/occupier of the premises. Failure to comply with such a notice would be a
summary offence. Prosecutions under such a notice should, in most cases, result
in a speedy resolution of the problem. If the contravention continued then the
fire authority should be in a position to avail of a per diem fine or the option
of pursuing the matter under indictment by way of a section 20 action.
The
introduction of such a system would inject a much needed flexibility into the
manner in which fire authorities attempt to ensure compliance with the terms of
the Fire Services Act, 1981.
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Mechanisms for Implementation
The
mechanisms employed to ensure the implementation of the 1981 Act are as follows:
-
(a)
The power of
inspection, including the right of entry and the right to demand information
under section 22 of the Act.
(b)
The
obligations with respect to fire safety placed on members of the public by
section 18.
(c)
The power to
serve a Fire Safety Notice.
(d)
The
power to seek a High Court injunction to have a property closed or prohibited
from continuing some specific use.
(e)
The power to
be heard at the annual licensing Court
(f)
The
power of the fire authority, or the DPP, to prosecute offences committed under
the 1981 Act, and
(g)
The
immunities granted to fire officers and fire authorities under sections 28 and
36.
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Section
22 of the Fire Services Act, 1981 empowers fire authorities to carry out
inspections. Where the Act’s requirements have been contravened the Act
provides for the service of a Fire Safety Notice under section 20. Should the
terms of the Notice fail to be observed, the matter may be pursued through the
courts. If the fire authority deem that the gravity of a particular situation
warrants it, an application may be made to the High Court for an order
‘restricting or prohibiting the use of the land or building’.
Powers of inspection by authorised
persons
Legal
obligations will be forgotten, ignored or deliberately flouted from time to
time. It would be naïve and dangerous to think otherwise. In and of themselves,
these lapses may, in some instances, pose no inherent danger. In other
circumstances, unfortunately, the results may be catastrophic. It is absolutely
essential, therefore, that fire authorities have an adequate system of
inspection in place to identify failures to comply with statutory obligations
relating to fire safety and prevention.
Section
22(2) and 22(3) of the 1981 Act provide the legislative basis for such a
programme of inspection: -
(2)
Any authorised person shall be entitled to enter at all reasonable times
(subject to his producing, if so required, his authority in writing as such
person) and inspect any land or building (other than a dwelling house occupied
as a single dwelling) for the purposes of this Act.
any
authorised person may-
(a)
inspect
any water supply in a building or on any land;
(b)
inspect
all records required to be kept by a fire safety notice or by regulations;
(c)
require
to be informed by the owner or occupier of any land or building or by any person
in his employment as to the purpose for which the land or building or any
particular part thereof is used, the number of persons who are habitually
employed or accommodated therein or resort thereto, the substance of which any
building is made and the method of construction and any other matter which the
authorised person considers to be relevant.
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This
section grants a fire authority a discretionary power to carry out fire
inspections and to request certain written and verbal information concerning
premises under inspection. There can be no doubt that this is a most important
section of the Act. As stated at the outset, the power to inspect a building or
land is an essential tool in promoting compliance with the terms of the Act
which impose statutory obligations regarding fire safety and fire prevention.
Follow-up inspections consequent on the imposition of requirements under Fire
Safety Notices can, again, be an effective method of encouraging compliance.
Unfortunately, in the tight financial circumstances in which many fire
authorities operate today it is the discretionary functions which are among the
first to fall foul of the ‘lack of resources’ axe. The statistics published
by the Department of the Environment and Local Government do not provide details
of the timing, nature or frequency of inspections carried out by fire
authorities nation-wide.
However,
I think it likely that the majority of delegates would agree with the following
assumptions: -
1.
the majority of inspection of places of public assembly take place under
section 24 of the Act (i.e. Licensing Applications)
2.
in many authorities there is no formal inspection programme designed to
systematically inspect all potential premises at risk in their functional area
over a particular period of time
3.
“in performance” inspections are generally carried out only in
response to an official complaint
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