Building owners responsibilities to provide safe egress from buildings for disabled and incapacitated persons

This article is replicated from an article written by James Cairney et al of Meredith Connell, Lawyers in the New Zealand Safety Council newsletter.

Recent regulation has changed the evacuation requirements for buildings, and there are some marked changes in respect providing for disabled persons and people requiring particular assistance.  This is important for most businesses, and particularly for those in multi-story buildings. 

Previously, under the now repealed Fire Safety and Evacuation of Buildings Regulations 2006, a safe place could be used for an evacuation scheme.  This meant that one or more places in a building could be designated as placed where persons with a disability were to gather if, in a fire emergency requiring evacuation, they were unable to evacuate the building using its means of escape from fire.    

That position has now changed under the new Fire and Emergency New Zealand Act 2017 and the new Fire and Emergency New Zealand (Fire Safety, Evacuation Procedures, and Evacuation Schemes) Regulations 2018 (the “Act” and “Regulations”).  The Regulations require the owner of a building to have a procedure in place for the safe, prompt, and efficient evacuation of the building’s occupants in the event of an emergency, essentially to a place of safety.  Among other things, the procedure must provide for the safety of any person who requires particular assistance.  The owner must also ensure that information about the evacuation procedure is readily available, and that information must include how persons requiring particular assistance will be provided for.

Accordingly, a building owner must consider and document how it will keep such people safe in an emergency.  The requirement is broad, and focuses on providing for the safety of persons requiring particular assistance, rather than prescribing precisely how that ought to occur. 

In addition to that, certain buildings must now have an approved evacuation scheme.  Those buildings are those with the following purposes:

(a)                the gathering together, for any purpose, of 100 or more persons;

(b)               providing employment facilities for 10 or more persons (in some cases where there is an automatic sprinkler system, an approved scheme might not be required);

(c)                providing accommodation for 6 or more persons (other than in 3 or fewer household units, and with the same qualifier as in (b) above);

(d)               a place where hazardous substances are present in quantities exceeding the prescribed minimum amounts, whatever the purpose of the building

(e)                providing early childhood education and care centre (other than in a household unit)

(f)                 providing nursing, medical or geriatric care (other than in a household unit);

(g)                providing specialised care for people with disabilities (other than in a household unit); and

(h)               providing accommodation for persons under lawful detention (not being persons subject to home detention).

The owner of such a building must apply to Fire and Emergency New Zealand (FENZ) for approval of its scheme.  

In addition to setting out the evacuation procedure, a scheme must include details of any equipment available for assisting any person who requires particular assistance to evacuate the building in a fire emergency or alarm, and confirmation that people are trained in the use of that equipment.

Importantly, an evacuation scheme must provide for any persons requiring particular assistance to evacuate the building; or, provide for those persons a place of safety inside the building.  If it is to be a place of safety inside the building: the building must have a compliant automatic sprinkler system; it must be a place from which the occupants can safety exit the building; and it must be a place that meets the definition of place of safety in clause A2 of the building code.  When a scheme opts for a place of safety inside a building, there are also express requirements as to how the place of safety is to operate in an emergency (see regulation 28).

Businesses should have taken or be taking steps to meet the requirement of the new Regulations and the new Act.   A failure to do so will be breach of the Act and/or Regulations.  Helpfully, Fire and Emergency provides details on its website about evacuation schemes: https://fireandemergency.nz/business-and-landlords/evacuation-schemes/

And of course, the Health and Safety at Work Act 2015 (“HSWA”) applies, and all of these fire requirements sit alongside a PCBU’s primary duty to ensure safety in section 36 of HSWA, as well as each officer’s duty to exercise due diligence to ensure that the PCBU complies with its duties.  A breach of the Fire and Emergency Act or Regulations is likely to also be a breach of your HSWA duty to ensure safety.  Among other things, what this means is that, if you’re an officer of an organisation, you ought to be taking steps to ensure people requiring special assistance are properly provided for in the event of an emergency.

 In a future article we will give some guidance around choosing the right type of evacuation device which meets safety and the standards requirements.