The recent Crown Court case involving Enterprise Inns and the Aintree Hotel in Bootle, Merseyside, has highlighted how important it is to ensure gas appliances are safe.
The case has also raised questions within the pub industry over who is responsible for a gas appliance or flue. There are various statutes and statutory instruments that will be relevant when deciding who is responsible for the maintenance and repair of gas appliances and flues.
These include the Gas Safety (Installation and Use) Regulations 1998, the more general Health and Safety at Work Act etc 1974 and the Management of Health and Safety at Work Regulations 1999.
The length of the lease and whether the pub includes a residential element will also have a bearing on who is responsible for complying with gas safety legislation.
For example, the Gas Safety (Installation and Use) Regulations 1998 contain, among other obligations, a requirement for the landlord under the lease to have a gas safety check on gas appliances and flues by a Gas Safe-registered engineer every 12 months. However, this will only apply to the residential part of the pub, and where the lease was granted for less than seven years.
In the Enterprise case the faulty gas appliance was located in the pub's living room and the lease of the pub was granted for less than seven years.
In those circumstances and following an investigation by the Health and Safety Executive (HSE), the faulty appliance was considered to be the responsibility of the landlord under the lease. This led to Enterprise Inns pleading guilty to a breach of the Health & Safety at Work etc Act 1974, and being fined £300,000 and ordered to pay prosecution costs of £19,000.
On its website the HSE appears to be hinting that for leases longer than seven years of pubs that contain a residential element, the landlord is "recommended" to carry out the various gas safety obligations. There is an argument to suggest that this could go beyond what the legislation states, but it is a point to be aware of.
Appliances and flues in the non-residential areas of the pub will most likely be the responsibility of the tenant under the lease, as most pub leases will contain provisions that require the tenant to take responsibility for maintenance and repair of gas appliances and the flues that solely serve the pub.
It can also be further complicated where the flue is used not only by the pub, but also by other parts of the building that are not part of the pub. In which case, the lease should deal with the responsibility of the flue's upkeep and maintenance.
Many pubs include both residential and commercial parts. Legislation distinguishes between different lengths of lease. And a flue may serve different tenants of the same building. Taking all this into consideration, you can see how the answer to the question of who is responsible is not always straightforward.
If in doubt and concerned about an appliance, you should arrange for an appliance to be tested by a Gas Safe engineer. For details, visit www.gassaferegister.co.uk