Any failing to comply with any part of the Fire Safety Order (“the Order”) can have wide reaching consequences, from physical harm or danger to life to the financial loss of business or assets, or from enforcement action. A recent case[1] highlights the potential financial cost to a freeholder which may have been recoverable from leaseholders but for a lack of compliance with the Order. The case involved an emergency waking watch and a block of flats, but the principle is transferrable to all commercial property.

In the case, the freeholder commissioned a Fire Risk Assessment (“FRA”) prior to the completion of works to the building. The FRA revealed a medium risk of fire and a moderate risk of harm in the event of fire, and recommended further assessments on an annual basis or in the event of a material change. The works continued but the freeholder did not take any steps to review the FRA nor commission a new one.

Within a few months, a control panel malfunctioned due to a water leak at the property. The fire officer involved raised numerous concerns in relation to the property and advised that a waking watch should be implemented immediately. An enforcement notice was served on the freeholder alleging failure to maintain a suitable and sufficient FRA under the Order.

The waking watch was implemented until the remedial works were completed approximately four months later.

The freeholder tried to charge the cost of the waking watch to the leaseholders, who refuted that they were payable and sought the determination of the court[2] on the issue.

The court determined that the costs had not been reasonably incurred and, as a result, the freeholder could not charge the cost to the leaseholders.

The court said that the cost of providing a waking watch was capable of being a service cost (and therefore chargeable to leaseholders) however, the cost of this waking watch had not been reasonably incurred because the cost was attributable to the freeholder’s failure to comply with its obligations under the Order (article 9).

The cost of the waking watch to the freeholder, for the four months for which it was required, would have been significant.

Had the freeholder complied with its duty under the Order, the fire safety defects (which led to the waking watch in this case) may have been discovered earlier and the waking watch may not have been necessary (as was the position in an earlier case[3]) or the cost of the waking watch may have been capable of being a service cost and charged to the leaseholders – potentially avoiding a significant outlay.

Compliance with the Order is imperative, and this case highlights the view the court takes when costs arise as a result of, or attributed to, a failure to comply.

By way of a reminder, all landlords of non-domestic property (and the communal parts of domestic property) must comply with the Regulatory Reform (Fire Safety) Order 2005 (“the Order”) to ensure that:

  • their premises reach the required standards, and
  • their employees are provided with adequate fire safety training.

In respect of their premises, a detailed Fire Risk Assessment (“FRA”) identifying the risks and hazards in a commercial premises must be carried out by a competent person and the FRA must generally be recorded. 

When carrying out the FRA, the assessor should consider the following:

  • who may be especially at risk;
  • how to eliminate or reduce the risk of fire as far as is reasonably practical;
  • the provision of general fire precautions to deal with any risk (to include emergency measures, such as a waking watch;
  • taking additional measures to ensure fire safety where flammable or explosive materials are used or stored;
  • Creating a plan to deal with any emergency and, where necessary, record any findings;
  • maintaining general fire precautions, and facilities provided for use by firefighters; and
  • keep any findings of the risk assessment under review.

For more information on the Fire Safety Order see: The Regulatory Reform (Fire Safety) Order 2005 – Fire safety law | London Fire Brigade (

[1] Radcliffe Investment Properties Ltd v Meeson [2023] UKUT 209 (LC)

[2] The Upper Tribunal (Lands Chambers) upheld the earlier decision of the First Tier Tribunal

[3] Avon Ground Rents Ltd v Cowley [2019] EWCA Civ 1827

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Jo Wooller

Senior Associate

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