Fire
Cases
Transactus Investments Ltd. v. Corporation of Dublin
[1985] I.R. 501
Murphy J.
The case stated in this matter raises a point of some significance on the proper interpretation of the Fire Services Act, 1981. The particular question that arises is posed in the case stated by the then learned President of the District Court, District Justice Thomas F. Donnelly, in the following terms:
“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?”
The relevant facts are set out in the case stated but may be summarised here briefly as follows.
On the 15th February, 1984, the respondents issued a fire safety notice under the provisions of s. 20, sub-s. 2 (b), of the Fire Services Act, 1981, addressed to the appellant requiring it as occupier of Parkers Night Club, 38, Lower Leeson Street, Dublin 2, to refrain from using the same unless and until the precautions specified in Part II of the schedule to that notice had been taken to the satisfaction of the Corporation. The appellant appealed against the notice to the District Court on each and every of the five grounds authorised by s. 21, sub-s. 1, of the Fire Services Act, 1981. At the request of the appellant, and on being informed that the works required by the notice were being carried out, the learned President adjourned the appeal from time to time and, finally, when the matter came before him on the 20th June, 1984, he was informed by the parties that the works had been completed and finally inspected by the fire officer on behalf of the respondents. The President was satisfied on the evidence then taken before him that the precautions specified in the notice had been taken to the satisfaction of the fire prevention officer. It was in those circumstances that a disagreement arose between the parties as to how the trial judge should exercise the powers vested in him by s. 21, sub-section 3. The appellant contended that he should annul the notice. The respondents contended that he should confirm it. In a reserved judgment attached to the case stated the learned District Justice concluded that he should decide the issue in relation to whether the premises in question were a potentially dangerous building as of the date of the hearing and not as of the date of the notice. As he was satisfied that the necessary precautionary work had been carried out – so at that point in time there was no potential danger – he concluded that the notice should be annulled rather than confirmed. It is with some hesitation that I differ from the conclusion reached by the learned President.
The scheme of the Fire Services Act, 1981, insofar as it relates to fire safety notices, is that the fire authority is permitted by s. 19 of that Act to identify “potentially dangerous buildings”, that is to say, buildings which in the event of a fire occurring therein constitute a serious danger to life for any one of a variety of reasons stipulated in that section. Having identified such a building the authority may then serve a fire safety notice under s. 20 of the same Act. Such a notice may, in relation to the building, prohibit the use of the building, or part thereof, until a specified precaution has been taken and may also impose on the owner or occupier of the building requirements as to the provision and maintenance of various facilities or arrangements in the buildings. Every fire authority is required (by sub-s. 8, of s. 20) to keep at its office a register of fire safety notices served by it. The sanction for the contravention of a fire safety notice is dealt with in ss. 4 and 5 of the Act.
Whilst a fire safety notice may require a specific thing to be done and the notice may, in accordance with sub-s. 6, of s. 20, specify a time within which any requirement shall be complied with, 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. Sub-section 3 of s. 20 (where that sub-section 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 extinguishing of fires” and indeed “limiting the number of persons who may be in the 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. It seems to me that the whole scheme of the Act envisages a situation in which the fire authority can and should in an appropriate case require by a fire safety notice something to be done, maintained and continued over a protracted period or for a specific purpose and that an appropriate record of such a notice and the obligation which it imposes would be maintained so that the public would know the obligations attaching either to the premises or to the owner or occupier thereof.
Where a notice is served, sub-s. 5, of s. 21, expressly provides that it shall not have effect until the expiration of fourteen days from the date of service thereof. The postponement of the operation of the notice is continued if a statutory appeal is taken to the District Court. However, if no appeal is taken the notice has statutory effect from the expiration of the fourteen days from the service thereof and continues indefinitely to have full statutory effect. Put another way, 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.
If then an appeal is taken – as was done in the present case – is there any reason why the fire safety notice should be annulled on the grounds that work thereby properly required to be done or carried out was done or carried out subsequent to the date of the notice of appeal and before the ultimate date of the hearing thereof? In my view the answer to that question is in the negative. An appeal from the decision of the fire authority in the form of a fire safety notice can be taken on any of the five statutory grounds mentioned in s. 21 of the Act of 1981. Perhaps the only statutory ground relevant to the argument in the present case is that set out at paragraph (b) of sub-s. 1, of section 21. That ground is “that the building is not a potentially dangerous building.” To rely on that ground of appeal the argument could only be made, at latest, as of the date of the notice of appeal and, perhaps, more properly, the date of service of the fire safety notice. If, having served the notice of appeal, the works are carried out and appropriate installations fitted which enable the fire authority to conclude that the premises are no longer a potentially dangerous building, this would in no way affect the validity of the original notice if the premises were potentially dangerous at the date of service thereof. Indeed, as I say, it is difficult to see how one could rely as a matter of law or grammar on remedial works carried out after the date of the notice of appeal as a proper ground of appeal.
In the present case the schedule attached to the fire safety notice does not appear to distinguish between requirements relating to the building and requirements imposed on the owner or occupier thereof. Certainly no express provision is made for the completion of specific works by a specified time or date. Again no express obligation appears to be imposed on the owners or occupiers of the buildings to maintain or preserve any particular installation, equipment or facility. On the other hand, it seems clear that a continuing obligation was intended and quite obviously is necessary. Counsel for the respondents drew attention to clause 18 of Part II of the schedule to the notice which he submitted – rightly in my view – that that and other obligations were of a continuing nature. That clause provided as follows:
“The use of candles, open fires, heating appliances with gas cylinders attached or other naked flames to be prohibited.”
It seems to me that that – and indeed other clauses – are of a continuing nature so that it would be wrong to annul the fire safety notice. In my view the proper order would be to confirm it but with or without such “modifications, alterations or additions” as the District Court thinks reasonable.
Perhaps I should add – having regard to the importance of this topic generally – that it does seem to me that it might be more helpful if the fire authority were to distinguish in their fire safety notices between those obligations addressed to the owners and occupiers and those imposed on the buildings and, again, to draw a clear distinction between continuing obligations and those which are being imposed once and for all. For these reasons it seems to me that the question raised in paragraph 7 of the case stated should be answered by saying that the learned District Justice should confirm the notice subject to such modifications, alterations or additions as he thinks reasonable.