Does the Regulatory Reform (Fire Safety) Order 2005 apply to boats?

The question of whether the Regulatory Reform (Fire Safety) Order (‘the FSO’) applies to boats has been long-debated amongst Fire Services up and down the country particularly as more and more people are choosing to live on houseboats in rivers and canals in England and Wales and given the thriving market on air b n b and the like for rooms to be rented out for short term stays.

A recent High Court case (R (Trotman) v Crown Court at Guildford, Surrey County Council intervening [2021] EWHC 2087 (Admin)) has finally determined the matter in respect of vessels where berths were let out to tenants and hotel/B & B guests.

At first glance, it may seem obvious that the FSO applies to boats. The main obligation under the FSO is for responsible persons to ‘take such general fire precautions as may reasonably be required in the circumstances of the case to ensure that the premises are safe’ (Art 8(1)(b)). ‘Premises’ are defined in Article 2 as ‘any vehicle, vessel, aircraft or hovercraft’.

However, there is carve out which is highly relevant. In Article 6 the FSO is said not to apply to ‘domestic premises’ and to ‘a ship, in respect of the normal ship-board activities of a ship’s crew which are carried out solely by the crew under the direction of the master’.

Quite straightforwardly then, the FSO will not apply in respect of normal ship board activities of a crew acting under the direction of the master. This is a matter of fact which will need to be considered by a Fire Service before taking action under the FSO but it would seem unlikely that people paying to stay aboard a boat and living and sleeping on a vessel moored in a river or canal for a few days, weeks or months would really, as a matter of fact, be defined as a crew acting under the direction of a master.

Of more difficulty then is the question of whether a ship is a domestic premise which is elsewhere defined as a private dwelling which is not used in common by the occupants of more than one such dwelling.

Again, this will come down to the facts but if a boat is used as sleeping accommodation for a number of guests the FSO would seem to apply to the common parts of a boat and not to the bedrooms themselves. This is a similar position to that which applies in blocks of flats where the FSO applies to stairs, corridors and shared kitchens but not to private bedrooms or flats.

So far, so simple. However, the Department of Communities and Local Government (as then was) in 2010 stated in a Monthly Bulletin that:

2.1 Communities and Local Government’s view is that the FSO generally does not apply to boats hired for the purposes of holiday or leisure activities.

2.2 We consider that the Fire Safety Order applies to: a) permanently moored vessels (i.e. those which cannot travel) which are rented out on inland waterways and b) to boat yards.

This (non-statutory) guidance has caused a number of problems for Fire Services who have typically been reluctant to rely on the FSO to take action against boats which are not permanently moored.

The position came to a head with Mr Trotman who owns and operates a number of boats in the Thames which he lets out to people on long and short term lets. Mr Trotman appealed against the Surrey Fire and Rescue Service’s decision to serve an enforcement notice against one of his vessels. The Fire Service’s decision to serve a notice was upheld by the Magistrates’ Court on appeal and then, again, by the Crown Court. In a final challenge to the Fire Service by way of judicial review to the High Court, Mrs Justice Ellenbogen DBE upheld the Fire Service’s right to rely on the FSO in respect of boats moored on inland waterways in the UK.

Given the fire risks that may arise in respect of boats on rivers and canals in England and Wales this judgment should comfort Fire Services that, in the right circumstances, the FSO can be relied upon to take enforcement action.

Nicholas Ostrowski appeared at all stages for Surrey Fire and Rescue Services. He can provide a transcript of Ellenbogen J’s judgment in R (Trotman) v Crown Court at Guildford, Surrey County Council intervening [2021] EWHC 2087 (Admin) on request.