England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE TURNER

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 25th July, 2001

LORD JUSTICE KENNEDY:

1. This appeal raises two important issues as to the powers of a Fire Authority to require that certain steps be taken before the issue of a fire certificate pursuant to section 5 of the Fire Precautions Act, 1971.

History

2. The case concerns a large modern warehouse at Brackmills, Northampton. It was completed in 1998 and is 175 metres long, 80 metres wide and 16 metres high. High racks have been installed and the warehouse is used to store a variety of goods on pallets, the goods being lifted onto and off the racks by fork-lift trucks.
3. On 12^th April 1998 the developers obtained from the building authority, Northampton Borough Council, a Buildings Regulations Certificate, and on 12^th June 1998 the appellants, having installed the racking, sought further Buildings Regulations approval. There has been no formal response by NBC to the appellants in relation to that application. When giving evidence in the Crown Court on 18^th May 2000 Mr Ross, the NBC Building Control Officer, said that the application, which was coupled with applications in relation to internal offices, etc. had not yet been determined, but his view seems to have been that the installation of racking was not a material alteration to the building which required further Building Regulations consent.
4. In July 1998 the appellants went into occupation as tenants under a 25 year full repairing and insuring lease, and on 15^th September 1998 they applied to the respondent for a Fire Certificate, indicating that the building would be used for distribution and warehousing and that about 40 people would work there. During the course of these proceedings it was agreed that the number working would be 30. The appellants indicated that there would be 46 portable fire extinguishers throughout the building but no other means of fighting fire. The respondents then inspected the building.
5. On 6^th March 1999 the NBC informed the respondent (but not the appellants) that the installation of racking was not a material alteration necessitating further Building Regulations approval and on 16^th April 1999 the respondent served on the appellants a notice under section 5(4) of the 1971 Act advising the appellants that the fire precautions in the premises were not considered to be adequate for the issue of a Fire Certificate, and setting out steps to be taken to bring the premises up to standard. The controversial step was the provision of a sprinkler system throughout the factory/warehouse area, which, it is said, would cost at least half a million pounds.

Litigation

6. A person who is aggrieved by a condition incorporated in a notice served under section 5(4) has a right of appeal to a Magistrates' Court, and the appellants exercised that right. The appeal was dismissed. The appellants then appealed to the Crown Court pursuant to section 27(1) of the 1971 Act, and that appeal was allowed. The respondent then appealed to the High Court by way of case stated and on 12^th January 2001 Turner J allowed that appeal. It is from his decision that the appellants are now appealing to this court. At the end of this judgmnent I will deal with the ten questions posed for the consideration of the High Court, but first it is necessary to address the two substantive issues which arise – first as to the scope of the 1971 Act, and secondly as to the effect of the inhibition imposed by section 13 of that Act. In relation to the first of those issues we have had the assistance of not only leading counsel for the appellants and for the respondent, but also of counsel for the Secretary of State.

First Issue: the ambit and purpose of the 1971 Act

7. The 1971 Act has been amended, in particular by the Fire Safety and Safety of Places of Sport Act 1987, and it is the basic submission for the appellants that at no time, either originally or in its present form, has the Act ever been concerned with anything other than the safety of those using premises, such as this warehouse, in respect of which Fire Certificates are required. The Act, it is submitted, is not concerned with the protection of the property or the protection of firemen who may be called to the scene or the protection of those who may happen to be nearby, and that is material in this case because the respondent when requiring the provision of sprinklers was not addressing himself to the safety of those who might be within the warehouse if a fire were to occur, but to one or more of the other considerations.
8. In the Crown Court the risk to those who might be within the building was carefully investigated, and it emerged that even on a worse case scenario those within the building could reasonably be expected to have time to evacuate. Furthermore it was and is the policy of the appellants to evacuate. Their staff are not expected to try to extinguish fires. So, as the respondent accepts, it was not the safety of those within the building that he had in mind when calling for the installation of sprinklers. As Mr Goudie QC for the respondent put it in this court, the respondents position is that sprinklers were required to fight fire, not to secure escape, even though they might assist to that end.
9. As to the statutory purpose, both sides have invited our attention to those parts of the 1971 Act, as amended which, for convenience, I set out below, beginning with the long title.

The provisions of the 1971 Act, as amended.

10. The Act is entitled "An Act to make further provision for the protection of persons from fire risks; and for purposes connected therewith."
11. Sections 1 to 4 deal with the determination of premises for which fire certificates are required. It is common ground that the warehouse with which this case is concerned fell within that category.
12. Sections 5 to 9 deal with fire certificates. That group of sections begins with section 5. Subsection (1) sets out how an application for a fire certificate is to be made. Subsection (2) sets out the powers of a Fire Authority to call for further information on receipt of an application. Subsection (2A) deals with the duties of an occupier whilst his application is being considered. He must secure that –

"(a) the means of escape in case of fire with which the premises are provided can be safely and effectively used at all material times;

(b) the means for fighting fire with which the premises are provided are maintained in efficient working order; and

(c) any persons employed to work in the premises receive instruction or training in what to do in case of fire."

13. Subsection (3) deals with what the Fire Authority must do in response to the application. So far as material it provides –

"(3) … it shall be the duty of a fire authority … to cause to be carried out an inspection of the relevant buildings … and if the fire authority are satisfied … that –

(a) the means of escape in case of fire with which the premises are provided; and

(b) the means (other than means for fighting fire) with which the relevant building is provided for securing that the means of escape with which the premises are provided can be safely and effectively used at all material times; and

(c) the means for fighting fire (whether in the premises or affecting the means of escape) with which the relevant building is provided ….; and

(d) the means with which the relevant building is provided for giving to persons in the premises warning in case of fire,

are such as may be reasonably be required in the circumstances of the case in connection with that use of the premises, the authority shall issue a certificate covering that use."

As originally enacted, and until 1987, the word "provided" in subsection (3)(c) was followed by the words "for use in case of fire by persons in the building". Section 5 continues –

"(4) where the fire authority, after causing to be carried out under subsection (3) above an inspection of the relevant building, are, as regards as any use of the premises specified in the application, not satisfied that the means mentioned in that subsection are such as may reasonably be required in the circumstances of the case in connection with that use, they shall by notice served on the applicant –

(a) inform him of that fact and of the steps that would have to be taken (whether by way of making alterations to any part of the relevant building or of otherwise providing that building or, as the case may be, the premises with any of those means) to satisfy them as aforesaid as regards that use; and

(b) notify him that they will not issue a fire certificate covering that use unless those steps are taken…..

That was the provision relied upon by the respondent when serving notice on the appellants on 16^th April 1999.

"(5) In this Act 'escape', in relation to premises, means escape from them to some place of safety beyond the building which constitutes or comprises the premises and any area enclosed by it or enclosed with it; and accordingly, for the purposes of any provision of this Act relating to means of escape, consideration may be given to, and conditions or requirements imposed as respects, any place or thing by means of which a person escapes from premises to a place of safety."

14. Section 5A enables the Fire Authority to grant exemption from the requirement to have a fire certificate in particular cases. An order can be made under section 1(3) to the same effect. Within section 5A the following subsections are material –

"(3) in deciding whether or not to grant exemption under this section for any premises the fire authority shall have regard to all the circumstances of the case and in particular to the degree of seriousness of the risk in case of fire to persons in the premises.

(8) A notice of the grant of exemption for any premises as respects a particular use of them may include a statement specifying the greatest number of persons of a description specified in the statement for the purposes of that use who, in the opinion of the fire authority, can safely be in the premises at any one time."

15. Section 5B deals with withdrawal of exemptions, and it provides –

"(2) in deciding whether or not to withdraw an exemption they have granted the fire authority shall have regard to all the circumstances of the case and in particular to the degree of seriousness of the risk in case of fire to persons in the premises."

16. Section 6 deals with the contents of fire certificates and provides –

"(1) Every fire certificate issued with respect to any premises shall specify –

(a) the particular use or uses of the premises which the certificate covers; and

(b) the means of escape in case of fire with which the premises are provided; and

(c) the means (other than means for fighting fire) with which the relevant building is provided for securing that the means of escape with which the premises are provided can be safely and effectively used at all material times; and

(d) the type, number and location of the means for fighting fire (whether in the premises or affecting the means of escape) with which the relevant building is provided…; and

(e) the type, number and location of the means with which the relevant building is provided for giving to persons in the premises warning in case of fire,

and may, where appropriate, do so by means of or by reference to a plan.

(2) a fire certificate issued with respect to any premises may impose such requirements as the fire authority consider appropriate in the circumstances –

(a) for securing that the means of escape in case of fire with which the premises are provided are properly maintained and kept free from obstruction;

(b) for securing that the means with which the relevant building is provided as mentioned in subsection (1)(c) to (e) above are properly maintained;

(c) for securing that persons employed to work the premises receive appropriate instruction or training in what to do in case of fire, and that records are kept of instruction or training given for that purpose;

(d) for limiting the number of persons who may be in the premises at any one time; and

(e) as to other precautions to be observed in the relevant building in relation to the risk, in case of fire, to persons in the premises.

17. Section 9 gives the right of appeal to which I have already referred, and section 9A is headed 'Duty as to means of escape and for fighting fire.' It begins –

(1) all premises to which this section applies shall be provided with –

(a) such means of escape in case of fire, and

(b) such means for fighting fire,

as may reasonably be required in the circumstances of the case.

(2) The premises to which this section applies are premises which are exempt from the requirement of a fire certificate by virtue of –

(a) a provision made in an order under section 1 of this Act by virtue of subsection (3) of that section, or

(b) the grant of exemption by a fire authority under section 5A of this Act….."

18. Section 10 deals with premises involving excessive risk to persons in case of fire and provides –

"(2) If as regards any premises to which this section applies the fire authority are of the opinion that use of the premises involves or will involve a risk to persons on the premises in case of fire so serious that use of the premises ought to be prohibited or restricted, the authority may serve on the occupier of the premises a notice …

(3) The matters relevant to the assessment by the fire authority, for the purposes of subsection (2) above of the risk to persons in case of fire include anything affecting their escape from the premises in that event."

19. Section 12 enables the Secretary of State to make regulations about fire precautions, and so far as material it provides –

"(1) … the Secretary of State may by regulations make provision as to the precautions which, …. are to be taken or observed in relation to the risk to persons in case of fire ….

(3) Without prejudice to the generality of the powers conferred on the Secretary of State by subsections (1)…., regulations made by him under this section may in particular, as regards to any premises to which they apply, impose requirements –

(a) As to the provision, maintenance and keeping free from obstruction of means of escape in case of fire;

(b) As to the provision and maintenance of means for securing that any means of escape can be safely and effectively used at all times;

(c) As to the provision and maintenance of means for fighting fire and means for giving warning in case of fire; …."

In fact no relevant regulations have been made pursuant to section 12.

20. Section 13 is material in relation to the second issue which arises in this case, but it is convenient to refer to it here. It provides –

"(1) Where an application is made for a fire certificate with respect to any premises and –

(a) The relevant building is a building to which at the time of its erection building regulations imposing requirements as to means of escape in case of fire applied; and

(b) In connection with the erection of that building plans were, in accordance with building regulations, deposited with a local authority,

the fire authority shall not in pursuance of section 5(4) of this Act make the issue of a fire certificate conditional on the making to the building of structural or other alterations relating to escape from the premises unless –

(i) There are in force under section 12 of this Act regulations …. or

(ii) The fire authority are satisfied that the means of escape in case of fire with which the premises are provided or the means of the sort mentioned in section 5(3)(b) of this Act with which the relevant building is provided are inadequate in relation to any use of the premises so specified by reason of matters or circumstances of which particulars were not required by or under the building regulations to be supplied to the local authority in connection with the deposit of plans.

(2) Where an application is made for a fire certificate with respect to any premises in the circumstances described in subsection (1)(a) and (b) above, and since the erection of the building plans have in accordance with building regulations, been deposited with a local authority in connection with any proposals relating to the building, subsection (1) above shall have effect in relation to that application as if in paragraph (ii) the reference to the deposit of plans included a reference to the deposit of plans in connection with those proposals.

(4) In this section 'structural or other alterations relating to escape from the premises', in relation to any such premises as are mentioned in this section, means structural or other alterations directly connected with the provision of the premises with adequate means of escape in case of fire or the provision of the relevant building with the adequate means of the sort mentioned in section 5(3)(b) of this Act."

21. Section 16 requires the local authority to consult the fire authority in certain circumstances before passing plans –

"(1) Where it is proposed to erect a building or to make any extension of or structural alteration to a building and, in connection with the proposals, plans are, in accordance with building regulations, deposited with a local authority, then, if it appears to the local authority likely –

(a) that the first use to which any premises constituting or comprised in the building or, as the case may be, the building as extended will be put after the proposals are carried out will be a use which at the time of the deposit of the plans was a designated use;

the local authority, if they are not the fire authority, shall consult the fire authority before passing the plans."

22. The amendment to section 5(3)(c) of the 1971 Act was made by section 15 of the 1987 Act which has the marginal heading "Automatic Means for Fighting Fire". A similar amendment was made to section 6(1)(d) of the 1971 Act, and when those amendments were brought into force in 1993 a Home Office Circular under the 1971 Act No 24 stated –

"Section 15 is being activated now because recent research and technical development has satisfied the Secretary of State that automatic means for fighting fire – primarily sprinkler systems – can help to reduce the dangers from rapid fire growth sufficiently to allow persons to escape from the source of the fire in most cases."

23. The circular, and the appendix thereto, contain a number of other provisions to which our attention was invited, but which it is not necessary to set out here. Miss Appleby, QC, for the appellants also invited our attention to the Fire Precautions (Workplace) Regulations 1997 (S.I. 1840) made under section 2(2) of the European Communities Act 1972 and the 1971 Act. Regulation 4 of those Regulations deals with fire fighting and fire detection, and provides –

"(1) where necessary (whether due to the features of a workplace, the activity carried on there, any hazards present there or any other relevant circumstances), in order to safeguard the safety of employees in case of fire –

(a) a workplace shall, to the extent that is appropriate, be equipped with appropriate fire-fighting equipment and with fire detectors and alarms; and

(b) any non-automatic fire-fighting equipment so provided shall be easily accessible, simple to use and indicated by signs,

and for the purposes of sub-paragraph (a) what is appropriate is to be determined by the dimensions and use of the building housing the workplace, the equipment it contains, the physical and chemical properties of the substances likely to be present and the maximum number of people that may be present at any one time.

(2) An employer shall, where necessary in order to safeguard the safety of his employees in case of fire –

(a) take measures for fire-fighting in the workplace, adapted to the nature of the activities carried on there and the size of his undertaking and of the workplace concerned and taking into account persons other than his employees who may be present;

(b) nominate employees to implement those measures and ensure that the number of such employees, their training and the equipment available to them are adequate, taking into account the size of, the specific hazards involved in, the workplace concerned; and

(c) arrange any necessary contacts with external emergency services, particularly as regards rescue work and fire-fighting."

24. The fire authority is vested with enforcement powers in relation to those Regulations which came into force on 1^st December 1997.

Submissions

25. Miss Appleby submits that over and over again the wording of the 1971 Act, as amended, demonstrates that its concern is only with the safety of those inside designated premises when fire breaks out. It is an Act "for the protection of persons from fire risks" (long title). Protection of property is not referred to anywhere, nor is the safety of fire-fighters, or those who may happen to be nearby. When inspecting the building pursuant to section 5 what the fire authority has to look for are the provision of and availability of means of escape in case of fire (section 5(3)(a) and (b)). So, read in context, section 5(3)(c) –which is linked to section 5(3)(d), concerned with giving warning – cannot be said to widen the scope of the inspection so as to require the fire authority to be satisfied in relation to means for fighting fire unrelated to escape. As Miss Appleby points out, until 1987 it could not even have been contended that the means for fighting fire contemplated by section 5(3)(c) were other than for use in case of fire by persons in the building. It is clear law that a change in statutory wording can extend obligations, and that after amendment repealed provisions are to be treated as never having been there (see Ford v Falcone [1971] 1 WLR 809 and Wood v Metropolitan Police Commissioner [1986] 1 WLR 796), but it would be surprising, to say the least, if in 1987 an amendment to section 5(3)(c) introduced for a very limited and clearly defined purpose, had the result for which Mr Goudie contends. Miss Appleby submits that even after amendment section 5(3)(c) is concerned only with means for fighting fire related to escape, and it is worth noting that nowhere is there any statutory or common law duty which requires an occupier or his employees to fight a fire, so when considering the powers and obligations which arise under the 1971 Act the attitude of the appellants to fire fighting is irrelevant.
26. In deciding whether to grant exemption under section 5A(3) the fire authority is to have regard to all the circumstances of the case, but that subsection and section 5B(2) continue in such a way as to focus on the risk to persons in the premises. Similarly in section 6, dealing with the contents of a fire certificate, the focus is on warning and means of escape, with section 6(1)(d) being amended for the same reason as section 5(3)(c).
27. Section 9A does impose a duty to provide means for fighting fire in premises exempted from the requirement of a fire certificate but, in the context of the Act as a whole, Miss Appleby submits that the means for fighting fire there referred to must be related to the safety of the occupants, not the safety of others, still less the preservation of the building.
28. Section 10, dealing with premises involving excessive risk, is again looking at the risk "to persons on the premises", and the regulatory power in section 12 is in effect, Miss Appleby submits, merely reflecting what appears earlier in the Act.
29. Mr Goudie submits that the statutory words, and in particular those in sections 5(3)(c), 5A(3), 5B(2), 6(1)(d), 9A(1)(b) and 12 do enable the fire authority to have regard to considerations other than the safety of those inside the building. He accepts that the main purpose of the Act is to provide for their safety but submits that at least in its amended form, that should not be regarded as its sole purpose. Mr Goudie points out that if a fire breaks out, and if it is not contained so far as possible at an early stage, it may endanger those who attend to fight it, and those who happen to be nearby. If a policy of non-intervention is adopted by building owners and occupiers in relation to all fires the number of large fires is likely to increase and as under the Fire Services Act 1947 there is a duty to protect property as well as people the resources of the fire services will be further stretched. In addition any significant fire is likely to pollute the environment, and to have adverse economic effects, on property owners and insurers, and possibly on business enterprises and their employees. Under Article 2 of the European Treaty the Community is charged with the task of protecting and improving the quality of the environment, and that too is something to be borne in mind when interpreting the 1971 Act.
30. As Mr Goudie points out, the 1971 Act is not the first or only statute which has addressed the risk of fire at a place of work, or for that matter the risk of pollution. Section 51(1) of the Factories Act 1961 required that:

"In every factory there shall be provided and maintained appropriate means for fighting fire, which shall be so placed as to be readily available for use."

31. A similar provision was enacted by section 38(1) of the Offices, Shops and Railway Premises Act 1963 in relation to premises to which that Act applied. Those provisions were superseded by the 1971 Act, but so far as I can ascertain there is no reason to conclude that the protection of employees in the event of fire was in any way reduced as a result of that change, which was effected by the Health and Safety at Work Act 1974.

Conclusion – Scope of the Act

32. In my judgment Miss Appleby is right as to the scope of the 1971 Act as amended. It is concerned with the protection of persons in premises in which fire occurs or may occur. It is not concerned with the protection of property, with the safety of firemen, or the safety of others who may be nearby. That is clear from the wording of the statute, read as a whole. Read in context I cannot accept that section 5(3)(c) enables a fire authority to use section 5(4) to require the provision of sprinklers to fight fire when that step is not reasonably necessary to facilitate the escape of those who may be at risk. Were it necessary to do so I would be prepared to look at the recent history of section 5(3)(c) to elicit its true meaning at the present time, but I do not find it necessary to take that step, and I certainly do not regard it as necessary to rely on what was said by the House of Lords in Pepper v Hart [1993] AC 593 in order to admit material as to the purpose of the legislature at the time when the Act was passed in 1970-71. Both Miss Appleby and Mr Corner advised us of the existence of such material, but in my judgment the scope of the unamended Act is really clear beyond argument, and Mr Goudie did not seriously suggest otherwise. He submitted merely that if the words in the 1971 Act had the meaning for which Miss Appleby contends that meaning could not survive the changes made in 1987. With that submission I am unable to agree. Factors such as the need to protect and improve the quality of the environment by avoiding pollution, and the economic desirability of not allowing large and valuable buildings to be gutted by fire, are important, but cannot be used as an aid to statutory interpretation where the meaning is clear. In other legislation those factors may be addressed, but they are not addressed here.

The Second Issue: the statutory bar.

33. I turn now to the issue which arises under section 13. Although the language of the section is not easy its purpose is clear. In the case of a building subject to building regulations imposing requirements as to means of escape in case of fire the section seeks to prevent a conflict between the fire authority and the local authority as to what, if anything, needs to be done, and that is achieved by giving precedence to the local authority, which, pursuant to section 16, must consult with the fire authority before passing plans.
34. Where, as in this case, an application is made for a fire certificate in respect of a building subject, as this building was, to building regulations requirements as to means of escape, the fire authority is not permitted in pursuance of section 5(4) of the Act to make the issue of a certificate conditional on the making to the building of structural or other alterations relating to escape from the premises. Miss Appleby submits that the requirement to provide sprinklers was an alteration of that character. Mr Goudie says that it was not, because the sprinklers were to fight fire not to secure escape, but even if it be accepted that they had a dual purpose the fire authority was entitled to act as it did because it was satisfied that the means of escape provided were inadequate by reason of matters or circumstances of which particulars were not required under the Building Regulations. In other words the installation of racking was not a material alteration, so it was not something of which particulars were required under the Building Regulations.
35. Miss Appleby points out that in the Crown Court Judge Hall found that the requirement of sprinklers was related to escape from the premises. At 20 A of his judgment he said –

"Does the condition that they include sprinklers relate to the escape from the premises? In my judgment it does because that is the only reason they put them there or should have put them there, namely to give people time to get out."

36. In my judgment that is an unacceptable conclusion because it is, as I have indicated, at odds with the evidence, and based upon the dubious premise that because the fire authority should have acted in a particular way that is the way in which they did act. However, what was said by the judge does illustrate that the section 13 bar will only operate effectively if the scope of the Act as a whole is understood and respected. In that event it is difficult to envisage the fire authority making conditions which are not related to some degree to escape from the premises, and if those conditions involve making structural or other alterations they must not be made in relation to a building subject to Building Regulations approval unless the existing means of escape are inadequate by reason of matters outside the scope of Building Regulations approval. The inter-relationship between the powers of the fire authority and those of the local authority would thus operate as intended, but if, as Mr Goudie contends, the fire authority can make conditions which require structural or other alterations within the scope of the Building Regulations authority, but over which that authority have no priority because the conditions do not relate to escape from the premises, then the object which underlies section 13 is frustrated, to say nothing of the frustration likely to be experienced by building occupiers dealing with 2 authorities who may be making different structural demands.
37. So, for what it is worth, I would accept Mr Goudie's primary submission in relation to this aspect of the case, and hold that if I am wrong as to the scope of the Act the requirement to install sprinklers is not barred by section 13(1). Were it necessary to look further at section 13(1)(ii) I am unaware of any evidence to indicate that, even assuming the racking did not require building regulatory approval, it was the presence of the racking which, in the opinion of the fire authority, rendered the means of escape inadequate.

Questions in the Case Stated

38. I turn now to those questions posed for the consideration of the High Court the answers to which are challenged in this appeal. The appeal concerns questions 1,2,3,4, 6,9, and 10, as revised in the court below. Those questions, and my answers thereto, are as follows:

Question 1: Whether the (Crown) Court had jurisdiction to determine whether the Fire Authority was barred by section 13 of the Fire Precautions Act 1971 (hereinafter "the statutory bar") from making any requirement pursuant to section 5 of the Fire Precautions Act 1971 conditional on the installation of a sprinkler system in view of the fact that the Northampton Borough Council had decided that no Building Regulation approval was required?

Answer: I would answer that question as I have indicated.

Question 2: Whether there was any or any sufficient evidence to support the court's findings that the racking was a material alteration of the warehouse which required Building Regulations approval?

Answer: I agree with Turner J, but for different reasons, that the question does not really arise.

Question 3: If the racking was a material alteration, whether there was any evidence to support the court's implicit finding that the building would be designed and constructed so that the unseen spread of fire and smoke within concealed spaces in its structure was in accordance with the requirement in Schedule B3(4) of the Building Regulations 1991 further would be designed and constructed so as to provide facilities so as to assist fire fighters in the protection of life in accordance with the requirement in Schedule 1B5(1) of the Building Regulations 1991 and whether such findings was or were right in law?

Answer: Again, for the reasons I have given, this question does not arise.

Question 4: Whether the Court had any jurisdiction to determine what if anything the Northampton Borough Council would have required by way of compliance with the relevant requirements contained in Schedule 1 of the Building Regulations 1991, and, in the absence of any consultation with the Fire Authority under section 16 of the Fire Precautions Act 1971 or other procedures arising thereby under section 13 of the Fire Precautions Act 1971 or by way of appeal to the Secretary of State?

Answer: As the judge said, this question does not arise.

Question 6: Whether there was any evidence to support the court's implicit finding that the sprinkler system was a requirement imposed in order to provide the warehouse with the means of escape in case of fire and whether such finding was right in law?

Answer: In my judgment Turner J was right to answer this question in the negative.

Question 9: Whether in law it is reasonable for the Fire Authority to make no requirement in the Fire Certificate for any means of fighting fire or for fire fighting equipment in this warehouse; and whether it makes any difference that the declared policy and intention of the occupiers of the warehouse is not, under any circumstances to fight any fire which may occur?

Answer: The first part of the question is tendentious. The fire authority must make a decision as to whether the means for fighting fire with which the building is provided are such as may reasonably be required having regard to the scope and purpose of the statute as explained in this judgment. The declared policy and intention of the occupiers could not affect the proper construction of the statute, but it could affect the decision of the fire authority as to what, in the circumstances, was required.

Question 10: Whether in law the (Crown) Court was right to hold that the purpose of the Fire Precautions Act 1971 was limited to the protection of occupants of buildings from fire risks and did not apply to risks to buildings?

Answer: Yes.

39. I would therefore allow the appeal, but I have doubts as to the form of the order made by the Crown Court. In my judgment the notice served pursuant to section 5(4) should be set aside and the matter remitted to the Fire Authority for reconsideration.
40. Nothing in this judgment is intended to cast doubt on the need for fire authorities and building occupiers to co-operate to minimise the risks, not only to occupants but also to fire-fighters and others, as well as to the environment, and to economic life, if a large fire does occur. Whether it is necessary to secure co-operation by means of statutory powers it is not for us to say. All we are concerned with is the scope and meaning of certain provisions of one existing statute.

LORD JUSTICE CHADWICK:

41. The appellant, City Logistics Limited, is the occupier of warehouse premises at Brackmills Industrial Estate, Northampton. The respondent is the fire authority in relation to those premises. It is common ground that the appellant's use of those premises is a designated use for the purposes of section 1(1) of the Fire Precautions Act 1971; and that, accordingly, a fire certificate under that Act is required in respect of those premises.
42. On 15 September 1998 the appellant applied, under section 5(1) of the 1971 Act and in the prescribed form, for the certificate which it required. On 16 April 1999 the respondent gave notice under section 5(4) of the Act "that the existing fire precautions in the premises were not adequate for the issue of a Fire Certificate"; and set out in a schedule to that notice "the work which must be done to bring your premises up to [the accepted national] standard". The work to be done included, as item 3.1 under the heading "Fire Fighting Equipment", the provision of a sprinkler system, conforming to British Standard 5306 Part 2, "throughout the factory/warehouse area".
43. It is common ground that the principal reason why the respondent, as fire authority, included item 3.1 in the schedule to the notice of 16 April 1999 was that he considered that the height and layout of racking installed by the appellant in the premises "gave rise to the potential for rapid uncontrollable fire spread, posing significant risks to the building, its contents, and any firefighting personnel committed to fighting a fire inside the premises" – see paragraph 6 of the skeleton argument put before this Court on his behalf. The respondent's case is that that was the only reason for the inclusion of item 3.1 in the schedule. The appellant submits that, although that was indeed the principal reason, the item did require the making of structural or other alterations "relating to escape from the premises" for the purposes of section 13(1) of the 1971 Act.
44. The issue on this appeal is whether the respondent was entitled to include item 3.1 in the schedule to the notice of 16 April 1999. His Honour Judge Hall, sitting in the Crown Court at Northampton on an appeal from magistrates under section 27(1) of the 1971 Act, held that he was not. Mr Justice Turner, on an appeal by way of case stated under section 28(1) of the Supreme Court Act 1981, held that he was.
45. On appeal to this Court the appellant relies on two grounds. First, that the case is one to which section 13(1) of the 1971 Act applies; and that, accordingly, the fire authority "shall not in pursuance of section 5(4) of this Act make the issue of a certificate conditional on the making to the building of structural or other alterations relating to escape from the premises" unless one or other of sub-paragraphs (i) and (ii) of section 13(1) are satisfied – which, it is submitted, they are not. Second, that, in deciding – in the context of section 5(3)(c) and (4) of the Act - whether or not he was satisfied that the means for fighting fire were such as could reasonably be required in the circumstances of the case in connection with the use of the premises as a warehouse, it was not open to the respondent to take into account - as, plainly, he did - the need to fight fire other than in connection with the safety of those using the premises and the means of escape.

Section 13 of the 1971 Act

46. Section 13(1) of the Act applies where an application is made for a fire certificate "with respect to any premises" and:

"(a) the relevant building is a building to which at the time of its erection building regulations imposing requirements as to means of escape in case of fire applied; and

(b) in connection with the erection of that building plans were, in accordance with the building regulations, deposited with a local authority,"

In that context "premises" means "building or part of a building"; and "building" includes "a temporary or movable building and . . . any temporary structure other than a movable one" – see section 43(1) of the Act.

47. It is not in dispute that, in the present case, the relevant premises comprise the whole of a building to which at the time of its erection building regulations imposing requirements as to means of escape in case of fire applied – see regulation 4 of The Building Regulations 1991 (SI 2768/1991) and requirement B1 in schedule 1 to those regulations. Nor is it in dispute that, in connection with the erection of that building, plans were deposited with the local authority by the developers. A certificate under regulation 15 of the Building Regulations 1991 was issued by Northampton Borough Council on 12 April 1998.
48. Where section 13(1) of the 1971 Act applies, the fire authority shall not, in pursuance of section 5(4), make the issue of a fire certificate conditional on "the making to the building of any structural or other alterations relating to escape from the premises" unless (i) there are in force regulations under section 12 of the Act – which (as is common ground) there are not – or (ii) the fire authority are satisfied that "the means of escape in case of fire with which the premises are provided . . . are inadequate in relation to any use of the premises . . . specified [in the application] by reasons of matters or circumstances of which particulars were not required under the building regulations to be supplied to the local authority in connection with the deposit of plans." In that context, the expression "structural or other alterations relating to escape from the premises" has the meaning given by section 13(4) of the Act: it means "structural or other alterations directly connected with the provision of the premises with adequate means of escape in case of fire . . ."
49. The first issue between the parties, in relation to section 13(1) of the 1971 Act, is whether the inclusion of item 3.1 in the schedule to the notice of 16 April 1999 – that is to say, the requirement that a sprinkler system be installed at the premises – was a condition which required "the making to the building of structural or other alterations relating to escape from the premises" within the meaning given to that expression by section 13(4) of the Act. It is only if the requirement that a sprinkler system be installed was a condition of that nature that the statutory fetter imposed by section 13(1) has any application in the present case. The issue turns on whether the requirement that a sprinkler system be installed was "directly connected with the provision of the premises with adequate means of escape in case of fire." Whether the requirement that a sprinkler system be installed was directly connected with the provision of the premises with adequate means of escape in case of fire is a question of fact. The appellant contends that that question of fact was answered by the judge in the affirmative; and further contends (as is plainly correct) that, on an appeal under section 28(1) of the Supreme Court Act 1981, a decision of the Crown Court may only be questioned on the ground that it is wrong in law or is in excess of jurisdiction.
50. The Crown Court Judge addressed the issue in what may be described as a post script to his judgment, at pages 18A-20G in the transcript. In a short passage, to which Lord Justice Kennedy has already referred, he said this, at page 20A:

"Does the condition that they include sprinklers relate to the escape from the premises? In my judgment it does because that is the only reason they put them there or should have put them there, namely to give people time to get out."

In the High Court, Mr Justice Turner dealt with the point at paragraph 52 of his judgment. He said this:

"Indeed, and as already indicated, the grounds of the appeal submitted to the Magistrates' Court and the Crown Court certainly do not make it plain that there was any challenge based on the believed existence of the statutory bar. Even if there had been, the only bar which would have existed would have been in respect of means of escape and not in relation to means of fighting fire." [emphasis added]

It is not clear whether, in the passage which I have emphasised, Mr Justice Turner thought that he was differing from the Crown Court Judge only on a question of law; nor (if he took that view) why he thought the question was a question of law; nor, if he intended to reject a finding of fact made by the judge, why he thought he was entitled to do so.

51. The respondent's submissions on this point are summarised in paragraph 19 of the skeleton argument advanced in this Court:

"The finding of HHJ Hall that the requirement to fit sprinklers was instead a matter "relating to escape from the premises" was not a finding of fact. If it had been, it would have been perverse in the light of the matters set out above. HHJ's finding . . . did not refer to any evidence; . . ."

52. In my view there is force in the submission that a finding of fact that the requirement that a sprinkler system be installed was "directly connected with the provision of the premises with adequate means of escape in case of fire" would have been perverse. There was no evidence upon which the Crown Court Judge could reach that conclusion. The evidence on the point, such as it was, pointed to the opposite conclusion. We were referred to two passages in the oral evidence of the Divisional Officer, Mr Gough, called by the fire authority. In answer to a question from the judge, Mr Gough said this (transcript, 19 May 2000, page 14G):

"Q. . . . Within the Fire Precautions Act what is the problem that you are seeking to overcome?

A. Within the Fire Precautions Act we have the problem that the means of escape exceeds the guidance that we are given. . . ."

That evidence was clarified in answers to a series of questions in cross-examination (transcript, 19 May 2000, page 31A-F)

"Q. . . . The means of escape would appear to be adequate in this case, would they not, without the addition of a sprinkler system?

A. The means of escape is exceeded and we are happy to exceed the means of escape.

Q. The travel distances are exceeded but the means of escape are adequate, are they not?

A. Sorry, the travel distance, yes. The travel distances are exceeded which we have accepted, . . .

Q. . . . looking at the means of escape, time to escape, although the travel distances are exceeded the time is adequate. That is right, is it not?

A. If all you do is stop what you are doing and get out, yes."

53. In the light of that evidence – and in the absence of any evidence to a contrary effect – I am satisfied that it was not open to the Crown Court judge, in law, to make a finding of fact (if that is what he intended to do, which I doubt) that the requirement that a sprinkler system be installed was "directly connected with the provision of the premises with adequate means of escape in case of fire". It follows that I am also satisfied that he was wrong in law to reach the conclusion that the statutory fetter imposed by section 13(1) of the Act has any application in the present case.
54. If, contrary to the view which I have just expressed, section 13(1) of the 1971 Act could have any application, the fire authority could displace the statutory fetter if they were in a position to invoke sub-paragraph (ii) of that section. In that context it is relevant to have regard to section 13(2) of the Act. The section is in these terms:

"Where an application is made for a fire certificate with respect to any premises in the circumstances described in subsection (1)(a) and (b) above and since the erection of the building plans have, in accordance with building regulations, been deposited with a local authority in connection with any proposals relating to the building, subsection (1) above shall have effect in relation to that application as if in paragraph (ii) the reference to the deposit of plans included a reference to the deposit of plans in connection with those proposals."

55. As Lord Justice Kennedy has explained, a further application for building regulation consent was made to the local authority, with deposited plans, on 11 June 1998 – that is to say, after the erection of the building. That application was made, and the plans deposited, in connection with the installation of internal racking. The local authority sent the plans to the fire authority on 15 October 1998; but the application for building regulation consent was never dealt with. That gives rise to two questions. First, whether the installation of internal racking required building regulation consent – as the appellant thought at the time. Second, whether (if it did not) the fire authority were satisfied that the means of escape were inadequate by reason of the installation of the racking. If the first of those question is answered in the affirmative – that is to say, if the installation of racking did require a fresh building regulation consent – then the effect of section 13(2) of the Act is that the statutory fetter cannot be displaced by reliance on sub-paragraph (ii) of section 13(1); because, in those circumstances, it cannot be said that the installation of racking is a matter "of which particulars were not required by or under the building regulations to be supplied to the local authority in connection with the deposit of plans". But, if the installation of racking did not require a fresh building regulation consent – which is the view which appears to have been taken by the local authority – then sub-paragraph (ii) of section 13(1) could be invoked to displace the statutory fetter; provided, of course, that the fire authority were satisfied that it was the installation of the racking which made the means of escape inadequate.
56. The Crown Court Judge took the view, I think, that the installation of the racking did require a fresh building regulation consent – see at page 18D-G in the transcript of his judgment. It is not at all clear from his judgment whether he would have taken the view that the fire authority were satisfied that it was the installation of the racking which made the means of escape inadequate; but, in the circumstances, that was not a question which he needed to address. Mr Justice Turner, on the other hand, expressed the view, at paragraph 52 of his judgment, that "At the date of the notice of steps it is a necessary inference that the Borough Council had already communicated their decision that the building regulation approval was not required for the proposed installation of racking". But he did not rely on sub-paragraph (ii) of section 13(1) in reaching his conclusion that the statutory fetter had no application. As I have indicated, he held that the fire authority had not made the issue of a fire certificate "conditional on the making of structural or other alterations relating to escape"; so the question whether sub-paragraph (ii) could be invoked never arose.
57. The conclusion which I have already reached in relation to section 13(1) of the Act makes it unnecessary to reach any conclusion on the question whether or not the installation of internal racking required a fresh building regulations consent. But, if the correct answer to that question is that no fresh consent was required, then I agree with Lord Justice Kennedy that there is nothing in the evidence which suggests that the installation of the racking led the fire authority to conclude that the means of escape were inadequate; so as to enable sub-paragraph (ii) of section 13(1) to be invoked. As I have said, there is nothing to suggest that the fire authority ever did reach the conclusion that the means of escape were inadequate.

Section 5 of the 1971 Act

58. Section 5(3) of the 1971 Act, as amended by section 15 of the Fire Safety and Safety of Places of Sport Act 1987, requires the fire authority, where an application for a fire certificate with respect to any premises has been duly made and following inspection of the relevant building, to consider whether they are satisfied:

". . . as regards any use of the premises which is specified in the application that –

(a) the means of escape in case of fire with which the premises are provided; and

(b) the means (other than means for fighting fire) with which the relevant building is provided for securing that the means of escape with which the which the premises are provided can be safely and effectively used at all material times; and

(c) the means for fighting fire (whether in the premises or affecting the means of escape) with which the relevant building is provided; and

(d) the means with which the relevant building is provided for giving to persons in the premises warning in case of fire,

are such as may reasonably be required in the circumstances of the case in connection with the use of the premises . . ."

In that context – and in the Act as a whole – "escape" is given a defined meaning by section 5(5) of the Act, as enacted in section 4(2) of the 1987 Act:

"In this Act, "escape", in relation to premises, means escape from them to some place of safety beyond the building which constitutes or comprises the premises and any area enclosed by it or enclosed with it; and accordingly, for the purposes of any provision of this Act relating to means of escape, consideration may be given to, and conditions or requirements imposed as respects, any place or thing by means of which a person escapes from premises to a place of safety."

59. If the fire authority are satisfied that the means mentioned in sub-paragraphs (a) to (d) of section 5(3) are such as may reasonably be required in connection with the use specified in the application, they must issue a fire certificate covering that use. If the fire authority are not so satisfied, then they must serve a notice under section 5(4) of the Act. The notice must inform the applicant of the steps which would have to be taken . . . "(whether by way of making alterations to any part of the relevant building or of otherwise providing that building or, as the case may be, the premises with any of those means)" . . . to satisfy the fire authority that the means mentioned in sub-paragraphs (a) to (d) of section 5(3) are such as may reasonably be required as regards the use specified in the application. Further, the notice must notify the applicant that the fire authority will not issue a fire certificate covering that use unless those steps are taken within a specified time.
60. As I have said, it is common ground that the principal reason why item 3.1 was included in the schedule to the notice of 16 April 1999 was that the respondent considered that the height and layout of racking installed by the appellant in the premises "gave rise to the potential for rapid uncontrollable fire spread, posing significant risks to the building, its contents, and any firefighting personnel committed to fighting a fire inside the premises". The respondent's case is that that was the only reason for the inclusion of item 3.1 in the schedule; in particular, that the requirement that a sprinkler system be installed at the premises was not a condition which required "the making to the building of structural or other alterations relating to escape from the premises". For the reasons which I have already given I am satisfied that the respondent is correct to take that view. But that gives rise to the question whether a condition which requires the making of alterations to the building so as to improve, or provide, the means for fighting fire – but which does not relate to escape from the premises – can be imposed under section 5(4) of the Act. To put the question another way: can the fire authority properly take the view – in the context of sections 5(3)(c) and (4) of the Act - that the means for fighting fire with which the building is provided are not such as may reasonably be required in connection with the specified use of the premises in circumstances where it is satisfied that no additional means for fighting fire are required in relation to escape from the premises?
61. I am satisfied that those questions must be answered in the negative. In my view there are three reasons which compel that conclusion.
62. First, the purpose for which the 1971 Act was enacted – as appears from its long title – was "to make further provision for the protection of persons from fire risks". It would be surprising, therefore, to find provisions in the Act which were directed to the protection of property – whether that property be the premises, their contents, the building or neighbouring buildings – which were not incidental to the protection of "persons". Further, I would find it surprising to find in an Act which is ostensibly concerned with fire precautions, provisions which were directed to the protection of members of the fire service when engaged in fighting fire. That is not to suggest that I do not recognise that there may well be a need for legislation which is directed to the protection of members of the fire service when engaged in fighting fire; only that I would not expect to find that need addressed in the Fire Precautions Act 1971.
63. The expectation that the 1971 Act is directed to the protection of persons who are in the premises – but who are not there as members of the fire service engaged in fighting fire – is confirmed by an examination of its provisions as a whole; and, in particular, by an examination of those sections (now sections 5 to 9F) which are grouped under the cross-heading "Fire Certificates". The following provisions all point, as it seems to me, to the conclusion that the persons for whose protection from fire risks the Act was intended to provide were those who are in the premises in connection with the specified use:

(1) Section 5(3) of the 1971 Act requires the fire authority to consider, in the case of premises which qualify for exemption under section 5A of the Act, whether or not to grant exemption under that section. In deciding whether or not to grant such exemption, the fire authority is required to have regard, in particular, "to the degree of seriousness of the risk in case of fire to persons in the premises" – see section 5A(3). Section 5B(2) imposes the same requirement when the fire authority is considering whether to withdraw an exemption which has been granted under section 5A. Further, a notice of the grant of exemption under section 5A may include a statement specifying "the greatest number of persons . . .who, in the opinion of the fire authority, can safely be in the premises at any one time" – see section 5A(8) of the Act.

(2) Section 6(1) sets out the matters that must be included in any fire certificate. In particular, paragraphs (b) to (e) of that section reflect the provisions in paragraphs (a) to (d) of section 5(3). Section 6(2) of the Act is in these terms, so far as material:

"A fire certificate issued with respect to any premises may impose such requirements as the fire authority consider appropriate in the circumstances –

(a) for securing that the means of escape in case of fire with which the premises are provided are properly maintained and kept free from obstruction;

(b) for securing that the means with which the relevant building is provided as mentioned in subsection (1)(c) to (e) above are properly maintained;

(c) for securing that persons employed to work in the premises receive appropriate instruction or training in what to do in case of fire, . . . ;

(d) for limiting the number of persons who may be in the premises at any one time; and

(e) as to other precautions to be observed in the relevant building in relation to the risk, in case of fire, to persons in the

premises."

(3) Where exemption has been granted under section 5A the premises shall be provided with "(a) such means of escape in case of fire, and (b) such means for fighting fire as may reasonably be required in the circumstances of the case" – see section 9A of the Act. But it is plain that the "means for fighting fire", in that context, must be means for fighting fire in connection with escape from the premises. Section 9A of the 1971 Act was enacted in 1987 – see section 5 of the Fire Safety and Safety of Places of Sport Act 1987. Section 5 of the 1987 Act is one amongst a group of sections which are introduced by section 4 of that Act. Section 4(1) of the 1987 Act provides that: "the following amendments of the [1971] Act with regard to means of escape from premises in case of fire shall have effect." Section 4(2), as I have mentioned, enacts section 5(5) of the 1971 Act. It would be surprising if "means for fighting fire, in section 5(3)(c) of the 1971 Act had a meaning which differed from that which the same words in section 9A of that Act are plainly intended to bear.

64. Second, sections 5(3) and (4) of the 1971 Act must be read in conjunction with section 13(1) to which I have already referred. It is plain that section 13(1) is intended to fetter the power of the fire authority to impose steps under section 5(4) which require the making of structural or other alterations to the building relating to escape from the premises in cases where the matter has already been considered by the local authority in connection with building regulations consent. Sections 16 and 17 provide for consultation between the local authority and the fire authority; but, if there is a difference of view as to what is required in a case where building regulations consent has been sought, the view of the local authority is to prevail. The purpose must be to ensure that whatever features are thought necessary in order to satisfy the fire safety requirements in the building regulations – now in Part B of schedule 1 to the 1991 Regulations – are identified before the building is completed; so that the building owner who complies with the requirements of building regulations consent when erecting the building is not faced with the need to make structural or other alterations as a condition of obtaining a fire certificate. But section 13(1) is directed only to alterations "relating to escape from the premises". That is obviously sensible and appropriate if the only alterations which could be the subject of a requirement under section 5(4) of the 1971 Act are alterations relating to escape; as is the case where the alterations arise in connection with the "means" mentioned in sub-paragraphs (a), (b) or (d) of section 5(3). But it would be remarkable if Parliament had deliberately limited the fetter imposed by section 13(1) of the Act to cases where the alterations were "alterations relating to escape" if it had intended that alterations which were not connected with escape could be required under section 5(4), in conjunction with section 5(3)(c) of the Act. The necessary inference, as it seems to me, is that Parliament did not so intend. It intended that "the means for fighting fire" in section 5(3)(c) meant means for fighting fire relating to escape from the premises.
65. Third, it is permissible (at least, in so far as there is any ambiguity) to have regard to the fact that paragraph (c) of section 5(3) takes the form which it now does as a result of an amendment made by section 15 of the 1987 Act. Before amendment the paragraph read:

" (c) the means for fighting fire (whether in the premises or affecting the means of escape) with which the relevant building is provided for use in case of fire by persons in the building;" [emphasis added]

The effect of the amendment in 1987 was to remove the words which I have emphasised.

66. In my view it is impossible to escape the conclusion that, as originally enacted in 1971, paragraph (c) of section 5(3) of the Act was directed only to the means of fighting fire in connection with escape from the premises. The dichotomy between "in the premises" and "affecting the means of escape" arises because "the premises" may comprise only part of "the building" – see the definition in section 43(1) of the Act. "The means for fighting fire . . . with which the relevant building is provided" may be "means . . . in the premises"; or may be "means . . . affecting the means of escape" which are within the building but outside the premises. "The means for fighting fire …. with which the relevant building is provided for use in case of fire by persons in the building" were plainly not intended for the protection of members of the fire service engaged in fire-fighting. Nor, as it seems to me, were they intended for the protection of the premises, property in the premises, the building or neighbouring buildings. Further, the 1971 Act imposes no obligation on those for whose use the means for fighting fire were to be provided to use those means; and it is, I think, impossible to hold that the obligation in section 6(2)(c) – and, after amendment in 1987, in section 5(2A)(c) – which requires that persons employed to work in the premises receive training in what to do in case of fire was intended to extend beyond training in how to raise the alarm and how to escape. It could not have been intended to impose an obligation upon employers to ensure that those whom they employed were trained to fight fires – save, perhaps, in connection with escape.
67. If paragraph (c) of section 5(3) of the Act, as originally enacted, was directed only to the means of fighting fire in connection with escape from the premises, then it is impossible to hold that the amendment in 1987 – by the removal of the words "for use in case of fire by persons in the building" – was intended so to enlarge that paragraph that, following the 1987 amendment, it extended to the protection of property, or to the protection of members of the fire service engaged in fighting fire. The purpose of the amendment is not in doubt; it was to extend the "means for fighting fire" to automatic means. That appears from the side-note to section 15 of the 1987 Act. But the extension of the nature of the means of fighting fire – from means for use by persons in the building to automatic means - is one thing; an extension of the purpose for which the means are to be used – from protection in connection with escape to protection of the premises generally - is quite another thing. It is impossible to find an intention, in any provision of the amending Act, that the amendment should have the effect of extending the purpose for which the means of fighting fire are to be used. As I have mentioned, the only expressed purpose of the amending Act, in relation to fire precautions, was to make amendments with regard to means of escape – see section 4(1) of the 1987 Act.

Conclusion

68. For those reasons I , too, would allow this appeal on the ground that, in law, it was not open to the fire authority to take the view – in the context of sections 5(3)(c) and (4) of the 1971 Act - that the means for fighting fire with which the building was provided were not such as might reasonably be required in connection with the specified use of the premises in circumstances where it was satisfied that no additional means for fighting fire were required in relation to escape from the premises. I agree that the questions posed by the case stated should be answered in the terms set out by Lord Justice Kennedy in his judgment. I agree, also, that the matter should be remitted to the Fire Authority for reconsideration.

LORD JUSTICE RIX:

69. I agree with the judgments of Kennedy LJ and Chadwick LJ, which I have had the advantage of reading in draft. I gratefully adopt their summaries of the facts and their setting out of the statutory provisions. I also agree with the answers to the questions set out in para 38 of the judgment of Kennedy LJ.
70. The essential issue between the parties is whether the reference to "the means for fighting fire" in section 5(3)(c) of the Fire Precautions Act 1971, as amended by the Fire Safety and Safety of Places of Sport Act 1987, is limited to the means for fighting fire so as to enable persons within the premises concerned to make good their escape from the premises, or extends generally to the means of fighting fire for all purposes such as the preservation of the premises and its contents, the safety of the fire fighting services, the integrity of neighbouring premises and the safety of the latter's occupants.
71. I agree that this question must be answered in favour of the more limited construction, which is that for which the appellant contends.
72. Among the reasons for my conclusion are the following. The long title of the 1971 Act makes it clear that its focus is "the protection of persons from fire risks". There is no mention of property in that title. The approach of the statute is to identify "Uses of premises for which fire certificate is compulsory", to quote the title of section 1. Those uses are all concerned with the presence of persons on the premises, eg because the premises are used for sleeping accommodation or as a place of work (section 1(2)).
73. Section 5(3) lists the matters about which the fire authority must be satisfied on an inspection. Four matters are itemised, (a) to (d). The first, (a), is "the means of escape"; the second, (b), is "the means (other than means for fighting fire)…for securing that the means of escape…can be safely and effectively used"; the third, (c), is "the means of fighting fire"; and the fourth, (d), is "the means…for giving to persons in the premises warning in case of fire". It is section 5(3)(c) which is the basis of the respondent's case: but it is to be noted that this subsection is the third in a list of four items which are concerned with the safety of persons within the premises and their ability to escape from them in the event of fire. In that context it seems to me that "the means for fighting fire" referred to are also means, albeit fire fighting means, directed to securing that the means of escape can be safely and effectively used. They are means for the protection of persons from fire risks. In other words section 5(3)(c) is to be read closely with section 5(3)(b) which immediately precedes it and within the context of section 5(3) as a whole. The respondent submits that section 5(3)(c) must be read broadly because of the words in parenthesis which qualify "the means for fighting fire", viz "(whether in the premises or affecting the means of escape)". However, plainly the second half of that alternative is concerned with the means of escape. As for the first half of the alternative, "in the premises", in my judgment that is merely to emphasise the width of the requirement that the means of escape, which after all are directed to escape from the premises (see section 5(5)), can be effectively reached and used.
74. Section 5(3)(c) in its original form ended with the words "for use in the case of fire by persons in the building". That was inconsistent with the respondent's submission that the means for fighting fire were for use by the fire fighting services inter alia for the protection of the property and its contents. It is true that those words were deleted by the 1987 Act, but, as the side-note to section 15 of the 1987 Act makes clear, the purpose of the amendment was to extend the means for fighting fire to automatic means (such as sprinklers).
75. Section 5A, also part of the 1987 amendments, deals with the possibility of granting exemptions. Section 5A(3) emphasises the particular importance for these purposes of "the degree of seriousness of the risk in case of fire to persons in the premises". That is consistent with and confirms the central focus of the 1971 Act. It is true that that subsection also enjoins the fire authority to have regard to "all the circumstances", a matter stressed by the respondent: but that injunction is inevitable, and provides no reason for finding in such purely general language the much wider function of protecting property etc for which the respondent contends. Section 6(2) also emphasises in its every line that the rationale of the contents of the fire authority's certificate is the protection of the persons in the premises and to that end the proper maintenance of the means by which that is to be secured.
76. Section 9A was introduced into the 1971 Act by section 5 of the 1987 Act. Chadwick LJ has explained why in its context the reference in section 5A(1) to "means for fighting fire", following on the reference to "means of escape in case of fire", must be limited to the context of fighting fire to secure that the means of escape can be effectively and safely used. This is another subsection of the 1971 Act upon which the respondent relies: but once again there is nothing to suggest that the reference to means for fighting fire is designed for the wider protection of property etc, as distinct from being ancillary to the well identified focus of the Act which is the protection of persons whose presence in the premises is consequent on the use to which the premises is put and whose escape from the premises by means of escape is the primary concern of the legislation.
77. That focus of the Act is again well emphasised in section 10 (another amendment introduced by the 1987 Act) and section 12. Section 10 is dealing with premises involving excessive risk to persons in case of fire. Section 10(2) permits a fire authority to serve a prohibition notice on the occupier of premises whose use "involves or will involve a risk to persons on the premises in case of fire so serious that use of the premises ought to be prohibited"; and section 10(3) provides that for the purpose of the assessment "of the risk to persons" to be made by a fire authority under section 10(2) relevant matters include "anything affecting their escape from the premises". Section 12, an original section of the 1971 Act, partly amended by the Health and Safety at Work Act 1974 and again by the 1987 Act, enables the Secretary of State to make regulations about fire precautions. Section 12(1) again emphasises that the purpose of such regulations is to make provision as to precautions to be taken or observed "in relation to the risk to persons in case of fire" (but not "in connection with the carrying on of any manufacturing process"). It follows that regulations designed to preserve the property or its contents would not be within the power granted to the Secretary of State. Section 12(3) goes on to give examples of the requirements that such regulations might impose. Foremost among them (subsection (3)(a) and (b)) are requirements as to means of escape which pick up the language of section 5(3)(a) and (b) respectively. The language of section 5(3)(c) and (d) is then swept up together in section 12(3)(c): "[requirements] as to the provision and maintenance of means for fighting fire and the means for giving warning in case of fire". It is again clear that "means for fighting fire" are part of precautions in relation to the "risk to persons" (not property) and that the principal concern in this respect has to do with means of escape. Section 12(3)(c)'s reference to "means for giving warning" clearly relates to a warning of fire which will enable "persons in the premises" (the language used in section 5(3)(d)) to use the means of escape from the premises. That is the context in which "means for fighting fire" occurs, and underlines the natural construction of section 5(3)(c).
78. Section 13 is concerned with what has been called the "statutory bar". It is again focused on, indeed limited to, "means of escape", as its language repeatedly makes clear. In that context, the local authority concerned with building regulations has the primary responsibility for ensuring that a building is constructed with adequate means of escape. It is only where the inadequacy of means of escape is revealed by reason of matters of which particulars were not required by the building regulations that the fire authority can make a certificate conditional on the making of structural or other alterations "relating to escape from the premises".
79. In the circumstances the appellant has no need of the statutory bar under section 13(1) in order to succeed on this appeal. But if that were wrong, I agree that the conditions for the statutory bar have not been fulfilled. In truth the two points hang together. If the powers of the fire authority went as wide as the respondent submits, the statutory bar would most probably have been drafted more widely. It is because the respondent's submissions as to the width of section 5(3)(c) are mistaken that the statutory bar has been drafted in its present terms.
80. That said, I am puzzled by one more minor aspect of section 13 and that is the limitation of section 13(4) (reflected also in the wording of section 13(1)(ii)) to alterations "directly connected" with the provision of the premises with adequate means of escape or "adequate means of the sort mentioned in section 5(3)(b)" - a reference to section 5(3)(a) and (b) , but not section 5(3)(c) and (d). Why has reference to subsections (c) and (d) been omitted? I suspect that the reason is that under the original 1971 Act's language neither subsections (c) or (d) were thought of as being capable of impinging on alterations within the purview of the building regulations. This case, however, demonstrates that once subsection (c) is amended to allow for automatic sprinklers, there could well be a conflict between the fire authority and the local authority concerned with building regulations. It looks as though the alteration in 1987 to subsection (c) has not been followed through into section 13. I say this with diffidence because, in a complex provision, this aspect was not thoroughly explored.
ORDER: Appeal allowed with costs. Case remitted to fire authorities for re-determination. Leave to appeal refused. (Order does not form part of Approved Judgment)