Health and Safety Works to Listed Buildings and Other Heritage Assets
The general law is complicated and its application to historic sites requires careful consideration if it is not to lead to an overly risk-averse reaction that might blight the enjoyment and viability of the place.
Health and safety law falls into two parts: requirements to protect health and safety of employees and visitors, a breach of which can be a criminal offence; and duties of care that if breached may give rise to a liability to pay compensation for any harm done.
The obligations imposed by statutes such as the Health and Safety at Work Act 1974 in respect of the safety of staff and others may be breached without any harm being done. However, an investigation by the Health and Safety Executive most frequently follows an incident or a near miss. Statutory requirements may be breached without a claim for compensation from an injured party being valid or vice versa.
The requirements of best practice in the management of places of work and of sites open to the public is not covered here, but is dealt with extensively in Health and Safety Executive guidance notes.
The commentary below is only a brief introduction to the area of law and practice and covers the general implications of criminal and civil liability for health and safety.
Further reading is essential for anyone who needs to make sound and proper decisions about how to balance the need to keep visitors reasonably safe with the desire to have a good experience of a site.
Responsibility for the condition of buildings and sites
There is no general duty to keep a historic building or site in good repair, but if a place is unsafe for visitors and even trespassers then the owner and/or occupier of the property may breach statutory requirements and/or become liable to anyone who comes to harm due to its state and condition. But simply because someone comes to harm on a property does not mean an owner or occupier is automatically liable.
Occupiers of property are subject to a duty to take such care as is reasonable in all the circumstances to see that visitors will be reasonably safe for the purposes for which they are invited or permitted to be there (ref. 1).
In addition, occupiers can be liable to anyone on their premises, including trespassers, who come to harm as a result of a danger of which the occupier was aware or suspected and where it was reasonable for the occupier to do something about that danger (ref. 2).
Children have to be given special consideration. They do not have the same knowledge and experience to be able to keep themselves out of harm’s way and so an occupier must consider whether a site poses a particular risk to children who may have access to it.
Making the site reasonably safe
Historic properties may appear more inherently dangerous than modern properties. They can be more of an attraction to trespassers, particularly children. But what may make them more of a theoretical risk can also be what makes them historically important, attractive and interesting.
Safety on a site does not have to be guaranteed. The level of protection required by law is only what is reasonable.
Case law suggests that where a historic property clearly has uneven floors and awkward staircases, this is something that the visitor should be understood to have realised when entering. Unexpected or unreasonable risks do have to be guarded against, but the visitor may be assumed to be more cautious than if they were visiting a modern building.
Restricting access and warning signs can be reasonable precautions, but warning signs may not be sufficient if the risk warned of is an unreasonable one for the visitor to take.
Excluding or insuring the risk
The owner or occupier may seek to agree with a prospective visitor that liability for harm to the visitor is limited or excluded altogether by asking the visitor to agree that they enter at their own risk.
However, where the visitor is coming onto the land in course of the business of the owner or occupier, it is against the law for the owner or occupier to exclude liability for death or personal injury and may be unreasonable for them to exclude liability for other damage, such as to cars in the car park.
The owner’s risk can be passed on to insurers through an appropriate insurance policy although there is no duty on an owner to insure.
Local authority powers to deal with dangerous buildings and sites
Local authorities have various statutory powers to deal with dangerous structures, whether historic or not, including the power, in some circumstances, to demolish buildings.
When considering some of these powers in relation to listed buildings, the local authority is required to consider whether they should instead use their urgent works notice procedure or repairs notice and compulsory acquisition powers (ref. 3).
Anyone carrying out works that are urgently necessary in the interests of health and safety may be excused not having obtained prior consent.
However, it is still necessary to apply for the required consent as soon as possible and the works should be limited to the minimum necessary. Deciding whether works are urgent and, separately, whether they are necessary for health and safety can be difficult.
Expert advice should be sought, if at all possible. A precarious structure may be made safe by temporary propping and/or by secure fencing of the area including provision of temporary footpath or road closures if necessary, without the need to contemplate partial or total demolition.