Health and Safety (Enforcing Authority) Regulations 1998

Open Government Status

Fully Open

Publication date

17/07/15

Review date

17/07/19

Guidance owner

Operational Strategy Division; Local Authority Unit (LAU)

Target Audience

All HSE and Local Authority Inspectors

Summary

This OG gives detailed and specific guidance on the meaning of the Health and safety (Enforcing Authority) Regulations 1998. It should assist inspectors in resolving questions which may arise, although the interpretation given is subject to judicial decision in any particular case. This OG now incorporates guidance provided in OC 124/11 Health and Safety (Enforcing Authority) Regulations: A-Z guide to application, and OC 124/10 which dealt with application of the Health and safety (Enforcing Authority) Regulations 1998 in the motor vehicle repair industry.

Introduction

The Health and Safety (Enforcing Authority) Regulations 1998 (EA Regulations), which came into force on 1 April 1998, allocate to local authorities (LAs) the responsibility for enforcing the Health and Safety at Work etc. Act 1974 (HSW Act) and the relevant statutory provisions (RSPs), subject to specific exceptions, in all premises where the main activity is listed in Schedule 1 to the Regulations. Any difficulties encountered with these Regulations should first be raised with the HSE enforcement liaison officer (ELO). Difficulties which cannot be resolved should be referred by the ELO to the Local Authority Unit.

Action

HSE and LA inspectors to note the interpretation of the Regulation and apply these accordingly to determine the appropriate Enforcing Authority.

Detailed comment on the Regulations

Regulation 2(1) - Interpretation

'Agricultural activities'

'Agricultural activities' are defined by Regulation 2(1)(a). However, Regulation 2(1)(b) excludes such activities from the definition when they are carried out in a garden centre or other shop. The main activity in such premises will be retail and the LA will be the enforcing authority. A shop operated by a farmer on farm premises is allocated to HSE as the main activity remains 'agriculture'.

'Construction work' and 'contractor'

'Construction work' and 'contractor' have the meanings assigned to them by the Construction (Design and Management) Regulations 2015 Regulation 2(1).

'Common Parts'

'Common parts' means those parts of premises used in common by, or for providing common services to or common facilities for, the occupiers of the premises.

'Dock premises'

Although not listed in the EA Regulations, dock premises are also allocated in their entirety to HSE. However, dock premises are not the whole of the land area within a dock or port. 'Dock premises' are defined as 'any dock, wharf, quay, jetty or other place at which ships load or unload goods or embark or disembark passengers, together with neighbouring land or water which is used or occupied, or intended to be used or occupied, for those or incidental activities, and any part of a ship when used for those or incidental activities'. Some docks may have activities carried on within them which would normally fall to LAs for enforcement, eg pubs, shops, clubs, warehouses or offices. Where this activity is easily separable from the dock, such activities are enforced by the LA. The unloading of fishing vessels is allocated to HSE by virtue of the Loading and Unloading of Fishing Vessels Regulations 1988 Regulation 8.

'Fairground'

The definition of 'fairground' applies to those areas used wholly or mainly for the operation of any fairground equipment, other than a coin-operated ride, non-powered children's playground equipment, swimming pool slide, go-kart, or bouncy castle and similar bouncing devices.

'Gas'

'Gas' and 'gas fitting' have the meanings assigned to them by section 48 of the Gas Act 1986. A 'gas system' does not include a portable or mobile appliance supplied with gas from a cylinder, or the cylinder, pipes and other fittings used for supplying gas to that appliance.

'Hazardous substance'

'Hazardous substance or mixture' means a substance or mixture which meets the criteria for classification within any health hazard or physical hazard class laid down in the CLP Regulations.

'Local authority'

In England, a 'local authority' includes county councils, so far as they are the council for an area for which there are no district councils, district councils, and London boroughs. In Scotland they are councils for local government areas, and in Wales, county councils or county borough councils.

'Office activities'

This includes any activity for the purposes of administration, clerical work, handling money, telephone and telegraph operating and the production of computer software by the use of computers. Clerical work includes writing, book-keeping, sorting papers, filing, and typing, it also includes the editorial preparation of matter for publication except where that preparation is on the premises where newspapers, magazines, periodicals or books are printed.

'Railway and prescribed system of guided transport'

Any system of transport, the operation of which is specified in Regulation 3(2) of the Health and Safety (Enforcing Authority for Railways and other guided transport systems) 2006.

'Roads'

In England and Wales, this is any length of highway or any other road to which the public has access and includes bridges over which a road passes. In Scotland, 'road' has the meaning assigned to it in the Roads (Scotland) Act 1984.

Regulation 3 - Local Authorities as enforcing authorities in certain cases

Local authorities are given responsibility for the RSPs of Schedule 1 activities in non-domestic premises.

'Work in domestic premises'

The definition of 'domestic premises' is defined in s.53 of HSW Act and includes premises occupied as a private dwelling, and also includes gardens, yards, garages, outhouse etc.

LAs will normally have no enforcement role in private dwellings for any work within the meaning of 'work' and 'at work' (as defined by HSW Act s.52). However, where a Schedule 1 activity is carried out in premises as a distinct undertaking, it is necessary to have regard to the layout of the premises in order to decide whether the workplace is separate from the domestic premises and will therefore fall to the LA. If the workplace is in a dedicated part of the premises which may be approached by customers or clients without passing through the domestic part, then this would normally result in allocation of that part of the premises to the LA. Home workers will invariably fall to HSE, unless the work is carried out in a dedicated area where the activities would fall within Schedule 1, eg office work.

'Common parts of domestic premises'

The final part of Regulation 3(1) expressly provides for HSE enforcement in any other case including the common parts of domestic premises.

Such premises will include lobby areas and common staircases of blocks of flats. Most of these premises are not permanent workplaces and any work that does take place is likely to be transient in nature and involve activities reserved to HSE by Schedule 2, such as construction work or the maintenance of electrical systems.

The responsibility only relates to common parts of 'domestic premises' as defined by HSW Act s.53(1)(b). It does not affect LA enforcement in hotels, guest house and hostels. Nor does it have any effect on LAs' continuing enforcement role where the main activity is the provision of permanent or temporary accommodation as set out in the Regulations Schedule 1 para 5.

Regulation 3(2) - Separate occupancies in premises

Regulation 3(2) provides for each part of non-domestic premises separately occupied by a different occupier to be separately allocated according to the main activity of that separate occupancy. Separate parts of a building occupied by the same firm, eg a factory in one part with its office in another, do not have different occupiers and hence will not be separately allocated. Similarly, a factory canteen staffed by employees of the factory occupier will remain with HSE. A factory canteen which is run by a different occupier, eg a catering contractor, will generally fall to the LA for enforcement, but see Regulation 4(2) for the exceptions. Where anomalies arise resulting in the inefficient use of resources, these may be resolved using local transfer arrangements.

Regulation 3(3) - Mobile vendor

HSE has responsibility for work activities on the highways, however, any vehicle which is parked in connection with the sale from it of food, drink or other articles, the vehicles and its pitch shall be regarded as separate premises. Therefore, LAs are the enforcing authority for all mobile vendors.

Regulation 3(4)(a) - Common parts

The LA will be the enforcing authority for the common parts of non-domestic and multi-occupancy premises. HSE will be the enforcing authority where:

1. all separate occupiers are enforced by HSE, or
2. an HSE-enforced occupier has the responsibility for any or all of the common parts, but only to the extent of his/her liability. Thus if an LA-enforced occupier also has responsibility for some common parts, the LA will be responsible for those.

Regulation 3(4)(b) - Land within the perimeter of an airport

HSE enforce common parts outside a building (except car parking) and those 'air-side' to which only passengers and airport employees have access. Local authorities are the enforcing authority for airport car parks (Schedule 1 para 14).

Regulation 3(5) - Complex sets of premises

Regulation 3(5) is consequential to para 3(2) of the Regulations. It allocates complex sites, of the type listed below, to HSE.

Regulation 3(5)(a) - The channel tunnel

Regulation 3(5)(b) - Offshore installations

Regulation 3(5)(c) - Building or construction site

Regulation 3(5)(d) - Educational establishments

The exception from Regulation 3(2) for educational establishments is limited to the 'campus'. The campus should be taken as meaning the grounds associated with buildings, or other facilities, in which the main activity is education and any other activities, occupiers or buildings within those grounds will also fall to HSE by virtue of this provision. At some universities, residential accommodation for students is provided at clearly separate sites at which little or no educational activities take place. Such premises would be allocated to LAs by virtue of Schedule 1 para 5. The colleges of collegiate universities such as Oxford and Cambridge are considered to fall to HSE as the main activity is education despite there also being a large element of residential accommodation.

Regulation 3(5)(e) - Hospitals

Regulation 3(6) - Special provisions for railways

The Office of Rail and Road (ORR) shall be the enforcing authority for the common parts in a railway station, terminal or a goods yard which is served by a railway.

Regulation 4 - Exceptions overriding allocation under regulation 3(1)

Regulation 4(1) - Specified bodies

Regulation 4(1) makes HSE the enforcing authority for the activities of the bodies listed in Regulation 4(3) and those of their officers or employees wherever they happen to work as well as any part of premises which such bodies occupy. HSE will enforce for activities conducted by the named bodies wherever they arise, eg an LA-refuse collection activity at a supermarket premises for which the LA is the enforcing authority. HSE will also enforce for common parts of multi-occupied premises for which the bodies have duties under the RSPs but which may not be occupied by that body, eg common parts of an LA-owned market. Separate occupiers in that market will be enforced by the LA.

Regulations 4(2) - Premises occupied by specific bodies - Separate occupiers

This provides for HSE enforcement for any separate occupier within premises occupied by a specified body eg LAs, Crown, where 2 conditions apply, ie that:

1. the premises are mainly occupied by the specified body; and
2. the part occupied by the other person is for the purpose of providing services at the premises for the specified body.

An example will be NAAFI at an MOD establishment (but not NAAFI in the high street of a garrison town). A privately run canteen facility in an LA office would fall to HSE to enforce. The part occupied may be by lease or licence. This is another exception to the separate occupancy concept under Regulation 3(2) but restricted to specified bodies.

'LA owned premises'

Where premises are owned by an LA (eg sports halls, shopping malls) HSE will be responsible for enforcing any duties on the LA, but the sports activities/shopping activities etc. where they are managed by another, will be for LAs to enforce, in line with the Regulations Schedule 1.

In most cases, sports halls are 'occupied' solely by the contracted managing agents of the activities and facilities available, even though some LAs may hold the freehold, or occupy under a lease, part of the premises. In these cases, Regulation 4(1)(b) and (2) do not apply and the LA becomes the enforcing authority by virtue of Regulation 3(1).

However, where a clear conflict of interest is demonstrated, a Regulation 5 local transfer can be considered. Further guidance on conflicts of interest can be found in LAC 22/10: LA Enforcement in premises in which they may have an interest.

Regulation 4(3)(h) - Crown courts, magistrates' courts and the probation service

Crown and magistrates' courts, HM Coroners' courts, and Sheriff's courts in Scotland, are allocated to HSE as the main activity carried on in such premises does not appear in Schedule 1. The activities of the Probation Service are largely allocated to HSE as the main activity does not appear in Schedule 1. However, where the main activity comprises office activities or the provision of accommodation such as hostels, the LA will be the enforcing authority. Workshops, such as those offering activities such as metal working, will be allocated to HSE.

Regulation 4(4)(a) - Enforcement of HSW act s.6

This gives HSE sole enforcement responsibility for HSW Act s.6, both to inspect and enforce in relation to articles or substances for use at work, including at LA-enforced premises. However, in practice, HSE will consult with LAs before exercising this responsibility in LA-enforced premises.

Local authorities are requested to advise the ELO of any significant contraventions of section 6. Local authorities should be advised that a speedy response can only be anticipated for urgent matters. Matters relating to the Supply of Machinery (Safety) Regulations 1992 should be treated similarly.

If it is considered that a visit should be paid by any HSE inspector to the LA-enforced user, arrangements for such visits should be made, in conjunction with the ELO, through the appropriate LA.

Such special arrangements are not considered necessary for routine section 6 visits to the suppliers' premises where enforcement at the premises is otherwise undertaken by an LA.

Regulation 4(4)(b) - Specified activities

Any activity in Schedule 2, whether or not it is the main activity at premises, is excepted to HSE.

Regulation 4(5) - 4(6) - Other legislation

Regulation 4(5) provides for enforcement allocation under Regulation 3 and exceptions contained in Regulation 4 to be modified by other regulations made under HSW Act43. Regulation 4(6) enables the exceptions contained in Regulation 4 to be modified through transfers, or assignments where appropriate under Regulations 5 and 6.

Regulation 4(7) – 4(10) – Explosives

The licencing authority will be the enforcing authority for the Manufacture and Storage of Explosives Regulations 2005. However HSE shall be the enforcing authority for the 2005 Regulations in respect of the manufacture and storage of ammonium nitrate blasting intermediate. HSE will also be the enforcing authority for Regulation 25 of the 2005 Regulations for a site in relation to which it has granted a person a licence for the manufacture or storage of explosive at that site.

Regulation 5 - Transfer of responsibility

Regulations 3 and 4, and Schedules 1 and 2 allocate enforcement responsibility for premises. However such allocation can, if necessary, be subject to subsequent transfer.

Regulation 5(2)

States that a transfer may be made only by agreement between the enforcing authority which has the current responsibility and the authority to which it proposes to transfer it.

Regulation 5(3)

Requires notice to be given by the recipient authority to persons affected by the transfer, after a transfer has been made.

Regulation 5(4)

Prevents the transfer of part of premises occupied by the Crown, or any activity carried out there. However, office activities and the premises used for them can be transferred where there is agreement between HSE, the LA and the government department/public body concerned.

Regulation 6 - Assignment in cases of uncertainty

The arrangements described below are for use in those situations where on the facts relating to particular premises, part of premises or activity, the correct allocation of enforcement between HSE and LAs is unclear.

Regulation 6(1) permits assignment between authorities, but only if 2 conditions are simultaneously fulfilled, ie:

1. they agree that uncertainty does exist; and
2. they agree which authority is the most appropriate to enforce.

ELOs are asked to inform the Local Authority Unit when an assignment is being considered in order to allow early detection of any significant trends. Enforcing authorities should be guided by their legal advisers as to whether uncertainty does exist. Where such advice does indicate there is genuine uncertainty, and there is agreement as to which is the appropriate authority, an assignment can proceed.

Where legal advice is that uncertainty does not exist, allocation according to the Regulations should stand unless a transfer is made under Regulation 5. Either enforcing authority may apply to the Secretary of State under Regulation 6(2) for the purpose of removing uncertainty and to have the premises allocated by the Secretary of State to the most appropriate authority. In such cases however, to retain credibility and authority with employers, it is essential that the enforcing authorities agree about enforcement in the interim period before the final decision is reached. It is hoped that in almost all cases agreement can be reached, and that the Secretary of State will only be approached as a very last resort.

HSE has delegated its assignment functions to principal inspectors, ELOs and other suitably authorised senior officers. LAs should also make arrangements to ensure that formal delegation of this function has been made to an appropriate officer, or officers.

The authority to which responsibility has been assigned should give notice of the assignment to the persons affected (employers' and employees' representatives).

Additional guidance on the use of transfers and assignments is given in the OG of the Health and Safety (Enforcing Authority) Regulations 1998: (EA Regulations) Regulation 5 (transfers) and Regulation 6 (assignments) (Formerly OC 124/8).

Schedule 1 - main activities allocated to local authorities

Schedule 1 lists the main activities in non-domestic premises which determine whether LAs will enforce. Premises or activities not included in Schedule 1 or reserved specifically to HSE under Regulations 3 and 4 and Schedule 2, or excepted in Schedule 1 itself, will be the responsibility of HSE.

Further guidance on 'main activity' is given in OG 'Health and safety (Enforcing Authority) Regulations 1998: Main activity concept' ( formerly OC 124/9).

Para 1 - The sale of goods, or the storage of goods for retail or wholesale distribution

'Wholesale' may be defined as 'the re-sale (sale without transformation) of new and used goods to retailers, to industrial, commercial, institutional or professional users; or to other wholesalers; or acting agents in buying merchandise for, or selling merchandise to, such persons or companies. It includes the usual manipulations involved in wholesaling such as assembling, sorting and grading of goods in large lots, break bulks, repacking and redistribution in smaller lots'.

Retail may be defined as 'the re-sale (sale without transformation) of new and used goods to the general public for personal or household consumption or utilisation, by shops, department stores, stalls, mail-order houses, hawkers and pedlars, consumer co-operatives etc'.

Paragraph 1 includes premises such as shops or warehouses where the main purpose is the retail or wholesale sale of goods, or the storage for retail or wholesale distribution. Manufacturer's or producer's off-site warehouses in which finished goods or produce await transfer to the distribution chain does not exclude them from the scope of paragraph 1. However, where such warehouses are under the direct control of the manufacturing or producing site there is a case for consideration of Regulation 5 transfer back to HSE. Such warehouses within the factory or producers premises will not change the main activity on those premises and enforcement duties will therefore remain with HSE. The storage of raw materials, components or part-finished goods intended for further processing would not fall within the scope of this section. Sales include auction. Inspectors should also note Regina v Farthingstone Silos Ltd, a Crown Court case (unreported). Here the court decided that, in order to establish that storage for retail or wholesale distribution is a main activity at particular premises, it is not necessary for the goods to be distributed by the occupiers of that premises.

The reference to 'goods' in paragraph 1 includes animals, so LAs would be responsible for enforcement of the sale of animals in pet shops. This does not include the sale of livestock. Enforcement responsibility for 'the management of livestock up to the point of slaughter or export from Great Britain' is allocated to HSE by virtue of the definition of 'agricultural activities' in Regulation 2 and the provisions of Schedule 2, para 7. This activity would include anything that is physically done in relation to livestock at a market. Although the main activity at such a market is the sale of livestock it is unlikely that there would be any aspect of this activity that would fall outside the definition of 'agricultural activities' which are reserved to HSE. Therefore, HSE has enforcement responsibility for the sale of livestock. (NB: 'livestock' excludes horses).

The definition of sale of goods in paragraph 1 includes the sale and fitting of motor car tyres, exhausts, windscreens, and sunroofs. Any residual difficulties in these types of premises may be dealt with by local transfer. It is considered that metal stockholders and timber merchants will normally fall to LAs under this provision. However, where there is complex equipment on site or significant processing of the material but the main activity still falls within Schedule 1, these premises, or appropriate parts may be considered for transfer to HSE using the local transfer arrangements. Premises whose main activity is storage as a service (eg furniture removers' storage warehouse, intervention store, bonded storage self-storage facilities) will not fall to LAs because the goods are not for retail or wholesale distribution.

Areas of uncertainty may arise with regards to the warehouses or depots of freight forwarders, couriers and parcel carriers. Such instances should be discussed with the local ELO.

'Transport undertaking'

The sale and storage of goods for retail or wholesale distribution, as part of the business of a transport undertaking is enforced by the LA.

Paragraph 1(a) - Exception for container depots

Specifically removes doubt in the case of container depots linked with storage of goods en route to and from docks, airports and railways. HSE is the enforcing authority.

Paragraph 1(b) - Exception for wholesale distribution of dangerous substances

Dangerous substances and dangerous preparation are defined in The Chemicals (Hazard Information and Packaging for Supply) Regulations (CHIP) 2009.

Pesticide active ingredients are a major group of substances which are generally not found in the 'Approved Supply List' at present. It should be noted that formulated pesticide products which have been approved are required to be labelled in accordance with the Control of Pesticides Regulations 1986, as amended, or the Plant Protection Products Regulations 1995 and not CHIP. Where it is reasonably foreseeable that the contents of a warehouse will regularly change, with the resulting frequent change in enforcement allocation, an assignment should be made under Regulation 6, subject to prior discussion with the local ELO.

Paragraph 2 - Exhibitions

Paragraph 2 gives LAs duties in regard to premises such as exhibition halls. All other exhibitions would also fall to LAs under Schedule 1 para 9. Any section 6 considerations in relation to products on display will, however, fall to HSE under Regulation 4(4).

Paragraph 3 - Office activities

Paragraph 3 allocates to LAs premises in which the main activity is administration and allied activities. The definition of office activities includes computer software houses (see Regulation 2(1)).

Paragraph 4 - Catering services

Paragraph 4 allocates catering services to LAs where such activities are the main activity of an undertaking at premises. Where catering is a minor activity carried on by the same occupier it will be enforced by the authority responsible for the premises as a whole eg factory canteens incidental to a manufacturing activity. Where catering services are provided in part of the premises separately occupied by a separate occupier these will be separate premises allocated to LAs, unless they are in premises occupied by the specified bodies covered by Regulation 4(3) when HSE will be responsible for such activities.

Where the main activity at a premises is the preparation of 'in-flight catering' this will fall to the LA as a catering service.

Paragraph 5 - Residential accommodation

Premises obviously falling within this paragraph are hotels, guest-houses, hostels, residential care homes, and temporary or permanent caravan/camping sites. Clarifications are as follows:

In England all privately run residential care homes or centres are registered with the Care Quality Commission (CQC), and their website can be used to establish whether a care home is either registered to provide care with or without nursing care. In Scotland the Care Inspectorate (CI), and in Wales the Care Inspectorate Wales (CIW) are responsible for registration.

• Homes registered with the CQC, CI or CIW as providing nursing care only will automatically be allocated to HSE, as their main activity will be the provision of nursing or medical care.
• Home registered with CQC, CI or CIW as providing care without nursing only will automatically be allocated to LA, as their main activity will be the provision of residential accommodation*.

*The exception to this will be where the main activity is the provision of education despite there also being a large element of residential care. An example of this is a care service provided as part of a training establishment eg University or teaching hospital.

HSE will be the enforcing authority for all residential care homes owned/operated by an LA.

Dual-registered care homes

The provision of qualified nursing care distinguishes a nursing home from a residential care home so, when determining the most appropriate enforcing authority, it is necessary to consider carefully the main activity - this should focus on the main purpose for which an organisation uses a premises. The time spent caring for patients or residents, or the number of beds, cannot be the sole indicators of allocation, however, they are factors which may need to be taken into account.

Paragraph 6 - Consumer services

Whereas LAs will have responsibility for a large range of unspecified services, eg repairs to consumer goods where this is a main activity at premises, the scope of the allocation is restricted to:

1. Provision of the services in a shop in the ordinary meaning of that word. Whereas repairs to consumer goods, eg watches, shoes, clothing, household goods undertaken in shops will pass to LAs, services of the same kind at a factory unit, eg central repair factories, would be excluded.
2. Provision of the service mainly to 'non-trade' consumers. This point is primarily intended to exclude from allocation to LAs premises where the main purpose is the provision of a service to traders or manufacturers, eg plant hire or repair or instant print shops serving mainly trade customers.

'Shop with manufacturing attached'

Where the 'manufacturing' activity is in support of the shop, the LA is the enforcing authority. However, if the activity serves a number of shops then the main activity should be considered and the correct enforcing authority determined.

Paragraph 7 - Coin-operated launderettes

Laundries are not included under this paragraph nor under paragraph 6. Coin-operated launderettes are not shops. Laundry services provided in shops are considered consumer services. Service washes carried out by an employee in a coin-operated launderette will not affect the allocation. LAs are the enforcing authority.

Paragraph 8 – Cosmetic services and therapeutic treatments etc.

Paragraph 8 allocates to LAs a wide range of premises where the main activity is cosmetic and therapeutic (including 'fringe' medical) services, provided these are not carried out under the supervision or control of a member of one of the professions listed in the Regulations. Where a peripatetic practitioner carries out work in his/her client's private domestic premises, this work will fall to HSE. Therapeutic treatments include chiropody, acupuncture and ophthalmic opticians. Opticians shops have, in the past, been considered to fall under paragraph 1 of the Schedule (retail, sale) or paragraph 6 (consumer services).

Paragraph 9 - Leisure, cultural activities etc.

This allocates a wide range of premises to LAs for example art galleries, museums, theatres, sports facilities, cinemas, circuses, racecourses, riding schools etc. Cultural activities will include non-educational pursuits such as dance schools, other than those which are attached to schools. Where the main purpose of premises is educational or vocational training similar to that provided in the mainstream educational system, such premises will remain with HSE including their evening use for leisure purposes.

'Monuments, stately homes and grounds'

English Heritage is no longer part of the Crown, therefore LAs will be the enforcing authority for monuments, stately homes and/or grounds owned or operated by English Heritage. LAs are also the enforcing authority for similar premises that are owned or operated by The National Trust or similar organisations. However, the National Trust also own/operate premises which are open to the public but which may essentially be working factories or farms. If the main activity is agriculture, HSE will be the enforcing authority.

Paragraph 10 - Pleasure craft hire

Paragraph 10 allocates to LAs premises where the main activity is pleasure boat hire for use on inland waters, where 'inland waters' are all waters other than the sea. It is considered that the main activity should not change if, during the out of season period, the hire company carries out its own maintenance or repair of its fleet at the same premises. Inland water transport undertaking will remain with HSE under exception 1(a) of the Schedule. 'Pleasure craft' was defined in the Docks Regulations 1988, Regulation 2(1) and means 'any description of vessel when used solely for sport or recreation other than for carrying fare paying passengers'.

Paragraph 11 - Animal care

This will include premises such as kennels, catteries, pet groomers, and exhibition of creatures, eg zoos, where these are main activities. These are limited by exception to HSE for the main activities of veterinary practice, racehorse training stables, horse breeding stables, fish, maggot, and game breeding and agricultural activities as defined in Regulation 2(1) and listed in Schedule 1 paragraph 11, and Schedule 2 paragraphs 7 and 10. Premises where research involves care and use of animals will fall to HSE.

Paragraph 12 - Undertakers' services

Paragraph 12 allocates funeral parlours and undertakers' services to LAs. Where embalming as a main activity arises (probably rare), this will be enforced by HSE, as will coffin manufacture as a main activity.

Paragraph 13 - Religious activities

Under paragraph 13, premises where the main activity is all forms of religious worship, evangelical and church social events are allocated to LAs. Church-run accommodation, eg hostels, will pass to LAs normally under para 5, but not premises where the main purpose is education or training (both vocational and non-vocational) or medical (hospitals run by a religious order). Where the graveyards of churches are run by an LA, then that part of the premises will be enforced by HSE. Graveyards, separate from churches, and crematoria will fall to HSE.

Paragraph 14 - Car parking facilities at airports

LAs are the enforcing authority.

Paragraph 15 - Child care, playgroup or nursery facilities

Paragraph 15 relates to pre-school child care and the provision of playgroups or nurseries in non-domestic premises that are not part of a school and are independently run. Where such child care is provided on school premises, HSE will act as the enforcing authority, irrespective of whether or not the premises is operated by the LA or an independent operator, as the main activity of the premises is education, Regulation 3(5)(d) refers. HSE will also enforce those child-care premises run by the LA.

It is recognised that some pre-school child care premises offer an element of education. It is helpful to consider the provision of compulsory education as a guiding principle for premises where this occurs to determine who the correct enforcing authority is. Compulsory education begins in the term after a child reaches 5 years of age.

Some pre-school child care activities are provided in domestic premises, and require to be registered with the LA. Domestic premises where there is no separate access/egress, see paragraph 11 may be considered suitable for local transfer of responsibility to the LA under Regulation 5.

Schedule 2 - Activities reserved to HSE

Regulation 4(4)(b) gives HSE the enforcement responsibility for all of the activities listed below, whether or not carried on as the main activity and regardless of the allocation of the rest of the premises.

Paragraph 1 - Mines and quarries

Apart from mining or quarrying operations, any activity carried on at an active mine or quarry which otherwise might fall within Schedule 1, eg an entertainment facility at a non-operational mine, are also reserved to HSE.

Paragraph 2 - Fairgrounds

The definition of 'fairground' is given in Regulation 2(1) and refers, in turn, to 'fairground equipment'. 'Fairground equipment' is a defined term inserted into HSW Act by the Consumer Protection Act 1987 and means 'any fairground ride, any similar plant which is designed to be in motion for entertainment purposes with members of the public on or inside it or any plant which is designed to be used by members of the public for entertainment purposes either as a slide or for bouncing upon, and in this definition the reference to plant which is designed to be in motion with members of the public on or inside it includes a reference to swings, dodgems and other plant which is designed to be in motion wholly or partly under the control of, or to be put in motion by, a member of the public".

'fairground' means 'such part of premises as is for the time being used wholly or mainly for the operation of any fairground equipment, other than a coin-operated ride, ....'.

It is recognised that this definition remains very wide in scope, but excludes certain types of low- risk equipment so as to ensure, for example, that coin-operated children's rides outside shops do not constitute a 'fairground' excepted to HSE for enforcement. Similar equipment on a fairground site will, however, fall to HSE as part of the fairground. A fairground at a premises otherwise allocated to LA, eg a holiday camp, will clearly fall to HSE for enforcement.

Because 'fairground equipment' is defined in terms of rides, problems may be experienced with the allocation of side-shows, stalls etc., when the fair does not occupy a discrete site, eg a street fair. Some street fairs may have a clearly identifiable central core mainly of rides etc. which would fall to HSE, but may also extend into side streets where there are only side shows, stalls etc., which would fall to the LA. The enforcement arrangements under these circumstances will need to be agreed locally. Whenever a fairground consists of a mixture of rides, stalls etc. on a discrete site, this will fall wholly to HSE.

It can often be difficult to decide whether or not a piece of equipment can actually be regarded as 'fairground' equipment. I In cases of uncertainty the ELO should be contacted and they can obtain further advice from the Local Authority Unit.

Paragraph 3 - Radio, TV etc.

HSE will be the enforcing authority in the following situations:

1. for all activities in premises occupied by a television, radio or film undertaking in which the activity of broadcasting, recording or filming is carried on;
2. for broadcasting, recording or filming activities, when conducted at premises otherwise allocated to local authorities eg sports coverage (broadcasting does not include the mere showing of films); and
3. recording in any premises allocated to the LA will fall to HSE as the exception of the activity of 'recording' is not limited to radio, television or film undertakings.

Paragraph 4 - Construction work and work on systems

Local authorities will be the enforcing authority for all work relating to telecommunications and water systems, and the stripping of asbestos insulation from pipework within LA-enforced premises.

Paragraph 4(a) - Construction work

Non-notifiable construction work, ie not exceeding 30 days duration, which is entirely internal to the building and which is not separated off from the normal operations of the premises will fall to LAs where they are the enforcing authorities for that class of premises. The Construction (Design and Management) Regulations 2015 Regulation 2(4) says that a project is notifiable if the 'construction phase' will be longer than 30 days or will involve more than 500 person days of construction work. These projects are reserved to HSE.

Paragraph 4(b) - Gas systems

The term 'gas system', defined in EA Regulations: Regulation 2(1), excludes a portable or mobile appliance supplied with gas from a cylinder, or the cylinder, pipes, and other fittings used for supplying gas to that appliance. Work on gas systems is allocated to HSE except where it is carried out by a person who normally works at premises allocated to an LA. The use of gas in LA-enforced premises is, however, still allocated to the LA.

Paragraph 4(c) - Electricity systems

The definition of electricity systems in Regulation 2(1) has been framed such that LAs are allocated all work on the consumer side of the electricity system in premises that fall to LA enforcement by virtue of Schedule 1. This will normally include the whole of the building electrical system up to but not including the output terminals of the supply meter. Work on the electricity supplier's side of these terminals will fall to HSE.

Paragraph 4(d) - Ionising radiations

Work with ionising radiations carried on within LA-enforced premises by the staff who normally work there will usually fall to the LA. Work by contractors involving ionising radiation will normally be excepted to HSE. The exception leaves certain categories of work with LAs. These normally relate to work listed in Schedule 1 of the Ionising Radiation Regulations 1999 (IRR99) such as work with modern smoke detectors, beta lights, eg in fire exit signs, and other type-approved equipment.

Paragraph 5 - Medical use of ionising radiations

All uses including ionising radiations involving medical exposure to humans will fall to HSE. 'Medical exposure' is defined in IRR99 as 'exposure of a person to ionising radiation for the purpose of his medical or dental examination or treatment which is conducted under the direction of a suitably qualified person and includes any such examination for legal purposes and any such examination or treatment conducted for the purposes of research'. In some small therapeutic clinics allocated to the LA it may be that the only significant hazard is an x-ray set. In these circumstances the entire premises should be transferred to HSE using the local transfer arrangements.

Paragraph 6 - Radiography undertaking

The exception in paragraph 6 is intended to cover premises where ionising radiations are used or stored but which otherwise may fall to LAs under Schedule 1, eg because the main activity of the premises may be an office.

Paragraph 7 - Agricultural activities

Agricultural activities is an extremely wide term, and includes cultivation of ground, sowing and harvesting of crops and the raising of livestock. Tree felling is not included except where it is part of forestry, arboriculture or preparation of land for agricultural use or for construction work. Where LAs have enforcement responsibility for the grounds of stately homes open to the general public, any agricultural activities carried on there will remain with HSE. Where livestock breeding and keeping is incidental to the main activity eg a circus or zoo (entertainment) or a shop (sale), local authorities will enforce. Camping sites on farms will not be allocated to LAs unless there is separate occupancy under Regulation 3(2).

'Pop concerts' and similar activities may take place on farms. Where the concert site occupier is a person/company different from the farm occupier, then it is allocated to the LA. If the farm occupier sets up a concert on his/her own land, then HSE would remain the enforcing authority. However, such concerts should normally be allocated to the LA by local transfer.

'Agricultural shows'

At agricultural shows many of the activities will be covered by Schedule 1 and will fall to LAs for enforcement, eg banks/slopes, side stalls, horse riding, show horses and show jumping etc. This provision however excepts to HSE those activities which involve the handling of livestock (excluding horses) or the working of agricultural equipment.

Paragraph 8 - Activities on ships

This provision reserves to HSE Schedule 1 activities which may be carried on by separate occupiers on board a sea going ship eg shop or consumer services franchise holders. 'Ship' includes any vessel used in navigation and includes pleasure craft. A ship is not 'sea-going' if it never gets further than an estuary.

Paragraph 9 - Ski lifts etc.

Because of their similarity to fairground rides and certain construction equipment, activities including this equipment are allocated to HSE whenever they occur.

Paragraph 10 - Fish, maggot and game breeding

Despite the width of scope of the definition of agricultural activities, these three categories fall outside of the definition, and are therefore allocated separately to HSE.

Paragraph 11 - Any activity in relation to a pipeline

Paragraph 12 - The operation of a guided bus system or guided transport

This applies to systems other than railways that employs vehicles which for some or all the time travel along roads.

Background

This OG and A-Z annex can assist inspectors decide appropriate enforcing authority.

Organisation

None apply

Annotation and cancellation of instructions

Cancel and destroy: OC 124/7; OC 124/8; OC 124/9; OC 124/10; OC124/11

Contacts

Local Authority Unit

Appendix

Appendix 1: A-Z Enforcement allocation