As the Autumnal Firework season is upon us we look at the Regulations controlling their storage; we then take a seasonal look at what to be thinking about in preparing your building for Winter. Other stories focus on dispute resolution at lease renewal, a look forward at the future of the Real Estate Industry itself and The Bill affecting potential changes to the protection of our freedom. Finally our Q & A looks into the voids in our buildings in pursuit of excessive cabling. Take care with those Fireworks.
Firework storage for Retailers
The firework season is nearly upon us and most retailers who are preparing for it will be dealing with Hazard Type 4 fireworks and the storage of these will fall under the Manufacture and Storage of Explosives Regulations 2005 (MSER). Display-rated versions, known as Hazard Type 3 fireworks fall under more stringent regulation.
Under MSER, the licence or registration is granted to a person, not a site and the regulations divide compliance into those holding an all year round licence and those who are registered for supplying fireworks in only the following periods:
- Bonfire Night…October 15th to November 10th
- New Year…December 26th to December 31st
- Chinese New Year…the designated day and 3 days immediately before
- Diwali…the designated day and 3 days before.
The MSER refer to quantities in NEQ, ie Net Explosive Quantity, which is the amount in the firework,not the gross weight and it is an offence to store more than 5kg NEQ on a site that have not been registered or licenced. REGISTRATION is required if storing up to 250kg NEQ…a LICENCE is required for more than 250 kgNEQ and an HSE LICENCE is required if storing more than 2000 kg NEQ. This applies to storage on a shop floor or in storage areas.
On the shop floor the fireworks should be kept in a designated area well away from sources of ignition and in a display case or cabinet which must:
- Contain no more than 12.5kg NEQ
- Be designed to protect against sparks or sources of ignition
- Contain no other goods
- Have any lights or electrical fittings disconnected.
- Be waterproof
- Be kept closed and only opened when needed
If you are planning to store them in a warehouse with other combustible materials then they should be held in a separate metal container or similar cupboard/cabinet or a small mesh metal cage…the separation is key, as is the need to have at least a 30 minute Fire Resistance barrier between the storage area and the sales area.
For further information visit the HSE Website or the Chief Fire Officers Association, or contact us at TAP.
The Lease Renewal PACT; how to avoid going to Court
PACT, or to give it its full name. Professional Arbitration on Court Terms,is the result of a late 1900s consultation between the RICS, The Law Society and the ISVA who were looking for a method of resolving disagreement as to rent in the lease renewal process. Other lease terms can also be referred to a PACT qualified surveyor so as to limit or avoid the time and expense of taking the dispute through the Court process and this can have obvious benefits for both a Landlord and Tenant. Under the Civil Procedures Rule (CPR) this and other forms of alternative dispute resolution must be considered by the parties prior to litigation, or they risk punishment of costs by the courts.
The PACT surveyor is appointed by the RICS following a simple application process and forms are available for download off the RICS Website at a cost of £369, inc VAT. This is now a joint process between the parties, whereas up until 2003 it had to be the Tenant who made the initiating application; the idea being to try to maintain as much collaboration as possible which can lead to a swift and binding resolution. The professional who is appointed may be a surveyor or solicitor who has been specifically trained in this area and he/she may act as an arbitrator or independent expert, as chosen by the parties.
The idea is to give choice to the parties and their advisors as to ways of resolving disputes and it can incorporate all or some of the terms of the new lease or it may simply come down to determining valuation and rent. Surveyors are deemed better placed to adjudge this than the Courts. It may also be used in conjunction with court proceedings (which have to be stayed whilst this ADR is ongoing) and be viewed as the most efficient out of court method of resolving a key term, and this should have a positive bearing on cost, thus possibly avoiding full trial.
Whilst there are clear benefits here for both parties the actual number of applications to the RICS for PACT remain disappointingly low, rarely getting above 20 per annum since the late 1990s, which compare poorly with RICS applications for rent review resolution (running into thousands per annum) so perhaps there is more needed to promote this PACT approach which seems to offer flexibility, speed, low cost, a forum of choice and adaptability.
Worth considering in market conditions that indicate the need for all these factors for both parties.
After the heatwave, think about winter
"Prevention is better than cure", as the old adage has it,and when it comes to addressing the simple measures required to prepare a building for winter, now is the time to mobilise.
The last 2 winters should have alerted us all to what may be in store over the next 4 - 5 months and as occupiers, owners and employers we need to take responsibility for the manangement and control of premises and give thought to staff, customers and visitors especially with regard to snow and ice. In an increasingly litigious society we all need to be wary and plan ahead to make sure we have done all we can to prevent accidents, as well as deal with them when they happen.
Having some sort of winter plan is sensible business practice and a first step may be to actually appoint someone to oversee this. It will, of course depend upon the management regime in place at your building and an understanding of this will certainly help, as will input and suggestions, but if you are an owner occupier or renting unmanned premises you should consider certain things for yourself.
- Plan ahead and purchase supplies of grit or sand or rock salt, and know where it is kept.
- Check to see if you have enough brooms and shovels, or indeed are specialist grit spreaders needed?
- Keep a watchful eye on the weather forecasts
- Act quickly; snow is easier to clear before it becomes compacted.
- Be aware of the busy routes to and from the building including the car park paths, goods delivery areas and pathways between buildings.
- Set up a plan to prioritise the process so as to know what takes precedence.
- Ensure that outward facing doors are clear of build-ups of snow, ESPECIALLY Fire Exits, and that the routes from these exits are treated.
- Notify ALL staff, including mobile workers,about protocols and the conditions that they are likely to face when arriving at work, as this might be different from conditions at home.
For further guidance you can visit both the Direct Gov website (Advice on preventing different types of emergencies) and/or the Health and Safety Executive.
The Future of the Real Estate industry… revealed!
In an extensive, wide-ranging and influencial report sponsored by the The Royal Institution of Chartered Surveyors (RICS), professor John Ratcliff was asked to assess the challenges and influences facing populations and demographics over the next 20 years and the impacts that these are likely to have on the built environment, and therefore how the RICS and other bodies could and should respond. The report is entitled RICS Strategic Foresight 2030.
No easy task, especially as the brief works across a global landscape and canvasses a huge and multi-disciplinary audience, resuting in a weighty document running to well over 100 pages.
The report identifies some large and common themes including pressures on resources, rapid technological change, increasingly mobile workforces, a new age of responsibility and collaboration, viewing property as an ‘experience environment’, a service industry with heightened expertise in management service and operational relevance, prioritising risk management and the re-assessment of valuation criteria over and above the traditional methodologies.
This latter point looks at the differing ways investors may begin to look at property, some of which has emerged already with Socially Responsible Investment (SRI) and the view that a building’s value may be "determined more by talent and function than by access and location."
The report goes on to say that... "Owner-occupiers and tenants alike will demand higher levels of environmental performance in the buildings they purchase or rent. A two-tier market will quickly emerge between ‘green-rated’ and ‘other’ properties. The future of global property is green."
TAP has noticed a growing trend of commentators using this language but as yet there is little or no evidence to suggest it has arrived. The results of a survey conducted by Tuffin Ferraby Taylor show that investors are split between those who think a more sustainable building will produce a higher value and those who would expect no rise. Indeed only 11% of the property owners surveyed believed that they would gain extra income from a ‘greener’ building, with 39% foresaw a reduced tax burden.
As always the future is hard to predict, but the RICS Report had drilled down into some detail on the influences that are likely to shape our future and that of the property industry and you can read it for yourself in the downloads section on the RICS Website, www.rics.org and search for Strategic Foresight 2030.
Potential impacts for Landlords and Tenants in the Protection of Freedoms Bill
Whilst still being subject to a 3rd reading in the House of Commons and consideration in the Lords, the Bill seems likely to contain certain changes to the way private Landlords can control certain activities on their land. Those that may affect Landlords and Tenants could include the use of CCTV, the use of wheel clamping, powers of entry and, more topically, the freedom to protest in areas open to the public but privately owned; ie shopping centres.
Dealing with each of these in order; the Bill is looking to regulate the use of CCTV, and is intending to introduce a code of practice which would initially only cover the use of systems by Local Authorities and the police. However pressure is being applied by certain groups, notably the Civil Liberties organisation Liberty, who want to see some regulation and licencing introduced to those areas that are used by the public which would naturally include shopping centres. At present the only regulation over CCTV covers personal details captured and is held within The Data Protection Act 1998, and The Regulation of Investigatory Powers Act 2000 which deals with covert surveillance.
Wheel clamping is,theoretically, operated under licence following the Private Security Industry Act 2001 and can be undertaken by the landowner himself or by a licenced wheel clamping company; this licencing was introduced to address the activities of unscrupulous clampers. However following a consultation in August last year the Government are intending to ban clamping on private land, in this Bill. If passed,the Bill will make it a criminal offence to clamp and also for those who chose to flout the ban. Police and Local Authorities will not be covered by the ban in respect of public highways however the police can still be called to deal with illegally or dangerously parked vehicles on private land. A landlowner’s options may then only be limited to the introduction of barriers or fines,and the Bill sets out a scheme for the recovery of unpaid charges.
The Bill also responds to a review of Powers of Entry and is likely to have Landlord and Tenant implications both residentially and commercially. However the review covers powers only currently contained in primary or secondary legislation and would not affect a Landlord’s common law right to forfeit a lease by peaceable re-entry or to distrain goods for unpaid rent. Unnecessary and inappropriate Powers are also being looked at with a view to being repealed and some 1200 powers could be affected.
Finally, The Bill looks to control protests on private land but which are open to the public (a ‘’quasipublic place’’). Clearly this will affect Shopping Centres and whilst one particular amendment currently proposes allowing such activity, the property industry is resisting this in the light of the recent Riots. In reality, the economy can ill afford the consequences of increasing protestors’ rights, but the debate is sensitive seeing as it has implications for human rights too. This is a controversial area and TAP will endeavour to keep an eye on it.
Should I be worried about excessive amounts of cabling in my space and what should be done to control it?
As part of good ‘housekeeping’ it is advisable to try to keep tabs on what cabling is being used for and whether or not it is actually live and belonging to you. Often in a second-hand building or unit you may well inherit a previous occupier’s cabling, which should have been removed in the event that none of it was re-usable. However it is notoriously difficult to do this and speed and efficiency usually means that new cables are laid adjacent to old ones.
This does present difficulties, namely with identification and possible fire risk which leads to the need for some kind of cable management. Sophisticated systems include colour coding, barcoding, position logging and radio frequency identification (RFID) and those businesses that have high intensity intallations such as data centres will certainly be required to incorporate one or indeed a combination of them. For most businesses however a visual marking system will be sufficient.
As TAP has reported, leases are at an all time low in terms of length which implies that floorspace can and does change hands more frequently than ever before and this can introduce yet more cabling into the void spaces in commercial buildings. This build-up is further compounded by more frequent upgrades in computer and telecoms technology even though wireless networks are becoming more efficient and reliable. But limitations in bandwidth can still mean that hybrid wire/wireless systems are needed, which still maintains a need for more cables.
As part of a Fire Risk Assessment you should have a clear idea of what risks are presented to you by both yours and your legacy cables and both Landlords and Tenants need to be cognisant of the overall picture in any building. As a Tenant you can play your part by an early occupational assessment of what surrounds you and adopting a visual labelling process to give you peace of mind that legacy cables are not presenting a hazard of any kind. Preferably, before you move in you should insist that old cables are removed to add extra clarity to the situation.
Further information can be gained via the HSE and also in the detail contained within the BS 8492:2009 which addresses the segregation of telecoms and power cables.
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