Why you should comply with Regulation 38 of the building regulations

Why you should comply with Regulation 38 of the building regulations

In the context of fire safety, Regulation 38 of the building regulations is often agreed on during the design process, but not fully complied with in practice.

Fire safety engineer

Many design teams and clients will appoint a fire safety engineer to ensure that a development project:

  • complies with the published guidance (i.e. Approved Document B or BS 9999), and/or
  • meets the functional objectives of Schedule 1 of the Building Regulations through the development of an alternative fire safety engineering approach.

The fire safety engineer will normally be retained through the statutory consultation process to help the design team reduce project risks and to ensure that communications and discussions with the Building Control body and Fire Authority progress as smoothly as possible. After this point in the design process – normally RIBA Plan of Work 2013, Stage 3 (Plan of Word 2007, Stage E) – the services of the fire safety engineer are often no longer thought to be needed.

Regulation 38

Regulation 38 of the building regulations requires that:

“The person carrying out the work shall give fire safety information to the responsible person* not later than the date of completion of the work, or the date of occupation… whichever is earlier.”

This regulation aims to ensure that information critical to the fire safety of people in and around the building is communicated to the owner, occupier and/or end user, so that the building can be operated and managed correctly.

It should ensure that – provided the building is constructed in accordance with the design information available when most fire safety strategies are developed and drafted, i.e. RIBA Stage 3 – the fire safety strategy given to the responsible person is correct and accurately reflects the fire safety precautions in the building.

This enables the responsible person to conduct a suitable and sufficient fire risk assessment (FRA) for the building.  It will accurately record the physical fire safety precautions in place, and so enable risks to the relevant persons in the building to be understood in a way that allows them to be appropriately addressed.

*It should be noted that Regulation 38 specially references the term “responsible person” as having the same meaning given by article 3 of the Regulatory Reform (Fire Safety) Order 2005.

Design change – valid fire safety strategy?

However, should the building design develop or change from this agreed design before the completion of the project, the fire safety strategy may no longer be valid for the redeveloped building.

Although such changes should be agreed with the statutory authorities and properly implemented in the building, there remains the chance that (particularly in the absence of a fire safety engineer) they will not be reflected or recorded in the fire safety strategy. This could mean that the FRA conducted by the responsible person will no longer be suitable or sufficient for the building, as it was based on an incorrect understanding of the physical fire safety precautions in place. The result could be that people in and around the building are put at increased risk.

Design team held responsible

During the design and construction of a building, the design team may not appreciate or understand the full importance of providing the correct “as built” fire safety information to the responsible person – but may still be held responsible if this is not done.

The building’s FRA may be challenged at any time (not only if a fire or near miss occurs) by the approving authorities for not being suitable or sufficient to meet the requirements of the Regulatory Reform (Fire Safety) Order 2005. There is then the very real possibility that members of the design team will be held responsible for not communicating the correct fire safety information on completion of the project, as required by Regulation 38 of the building regulations.

BRE can provide fire safety engineering design and consultancy advice on a vast array of building projects.

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