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A consultation paper inviting ideas on the reform of the building control system in Scotland
8. This paper invites suggestions and ideas from people and organisations with an interest in improving building standards and the administration of the existing building control system. These responses will form the first part of a review process which could eventually lead to a complete reform of the building control system through a new Act of the Scottish Parliament. In order to encourage debate and highlight what are regarded by some as the problems with the existing system various topics are addressed as a series of questions for discussion. The questions relate to:
A questionnaire is provided in Part D to help you make your response and assist in the process of analysis of the responses
9. The scope of the Technical Standards has remained almost unchanged since their inception in 1959. The only additions have been energy saving measures and access for the disabled. However questions are now being asked about the expansion of the system to cover additional technical issues such as sustainability, or to include issues of quality, or to a wider range of construction work.
10. Every year we increase the stock of our new buildings and improve or reuse substantial numbers of existing buildings. The conservation of fuel and power is already covered in the Technical Standards, but there is now a real need to raise the specifications in an attempt to reduce energy consumption. There is an international commitment to reduce the amount of greenhouse gases, including CO2, reaching the atmosphere. As buildings account for a significant percentage of energy use, and hence of the production of CO2, there is an on-going process of examining how the Technical Standards could be amended to encourage improved energy efficiency and as a result reduce CO2 emissions. Changes in climate are already happening and will become more pronounced if greenhouse gases continue to be emitted at current, or worse, increased levels. These changes clearly have an impact on buildings (e.g. increased wind strength, higher rainfall, etc.)
11. The quest for sustainable development is at the heart of government policy. Studies have already been undertaken to consider the extent to which the wider principles of sustainability could be enforced through the building control system. Subjects as diverse as:
raise relevant questions in relation to building control.
12. It is, of course, for debate the extent to which mandatory control is suitable. It can however be argued that policies on sustainability should, where possible, be underpinned by mandatory requirements and the case can be made that there are issues of public interest which are best served by setting standards for new buildings. If it is accepted that there is no better alternative to a mandatory system, there will be difficulties in attempting to use the current system to achieve such objectives. Many of these issues are more concerned with lifestyle than the building fabric (issues such as density of development or re-use of water). Many are perhaps better related to planning controls, transport policies and the like. All the issues are related to the life cycle of the building from initial concept and design through construction and occupation to eventual re-use or demolition.
1.1 For which sustainability issues are the Building Standards Regulations the appropriate control mechanism?
1.2 Should buildings be designed for initial use only ?
1.3 Should building materials be restricted based on criteria of sustainability (e.g. embodied energy), re-usability, durability etc. ?
13. Although building control has developed from a concern to protect the public interest, many people regard building control as a source of protection for the building owner. In particular building control is often perceived as a form of public protection from "cowboy builders", by ensuring buildings are designed and built properly. However a certificate of completion only confirms that a building has been constructed in accordance with the warrant, which relates solely to matters covered by regulations. While this is an important first protective step it is not an indication of quality assurance for all aspects of construction.
14. This overlap between the interests of building control and the duties, responsibilities and interests of building professionals, leads to confusion in the public’s mind as to what the building control protects. The present system does not provide the protection the public expects from a building control system (i.e. that buildings are built to a recognised standard of quality, and not just technically compliant with minimum standards). Enforcement is also not effective, with both courts and clients reluctant to go to law over matters of quality or the assessment of whether buildings have been properly constructed.
15. As all professionals, contractors and users have an interest in the quality and suitability of buildings, it is reasonable to consider how this interest can be strengthened. Any assessment of the effectiveness of building control will to some extent depend on whether the system is seen solely in a negative role as a deterrent, preventing hazards to the public interest, or in a positive role as a promoter of best practice in the construction industry. We need to consider the best way forward.
2.1 Should the remit of the building control system be expanded to include issues of quality control ?
2.2 Should the building control system develop a quality assurance role for some or all buildings ?
2.3 Should the building control system continue to make the building owner rather than the builder responsible for compliance ?
Question 3 : Existing Buildings
16. The present system covers all new buildings, except: certain agricultural buildings, civil engineering, small buildings, temporary buildings, and moveable buildings. Existing buildings are only included when there is a change of use, alteration, or extension. Simple repairs, re-decoration and refurbishment are excluded. Existing buildings, where no changes are being made, have been considered inappropriate for control, as it is felt unreasonable to expect owners to raise the standards of existing buildings, even if it is technically possible to make such modifications.
17. There are now arguments for a change to bring existing buildings fully, or at least partially, within the remit of building control. This has already been mentioned in the context of sustainability and in particular energy conservation. To have any significant impact on energy use or CO2 emissions it will be necessary to cover not just the relatively small percentage of the building stock which is new each year, but also to set standards for the vast majority of existing buildings which would otherwise not be covered. This raises issues of:
18. The extension of building control to existing buildings has also become an issue with the introduction of the Fire Precautions (Places of Work) Regulations 1997. These regulations give force to two European Directives on fire safety in the workplace and, because almost all buildings other than dwellings are workplaces, will apply to the vast majority of non-domestic buildings. They impose upon the employer the responsibility of assessing the fire risk within the building and taking appropriate fire safety precautions. Until 1997 the statutory bar within the Fire Precautions Act prevented higher standards than those being required under the Technical Standards at the time of construction. In enforcing the Fire Precautions (Places of Work) Regulations a fire authority can now require an employer to upgrade an existing building to the level of the Technical Standards, or even higher. The traditional division of responsibilities between building control covering new buildings and fire brigades policing existing buildings has been altered and will therefore have to be re-assessed.
19. A third area where building control may become involved in existing buildings is in issues of access and facilities for people with disabilities. At present the requirements in the Technical Standards only apply to new buildings, or buildings newly created by conversion. Under Part Three of the Disability Discrimination Act 1995 (due to be introduced in 2004) which deals with removal of physical barriers to providing a service, it will be possible for an individual to attempt to get the standards in existing buildings improved.
3.1 If the scope of building control is extended should this apply to new buildings and alterations, or should building control be extended to existing buildings ?
3.2 If it is to apply to existing buildings, at what stage should this occur (e.g. at change of ownership or when buildings are refurbished) ?
3.3 If the scope of the building control system was extended to existing buildings should it cover all Parts, or just some ?
3.4 Are there any areas of the Technical Standards which are adequately covered by other legislation and could be deleted ?
20. The present Technical Standards do not distinguish between new buildings and existing buildings which are being altered, upgraded, modified or converted. This leads to regular and frequent requests for relaxation for existing buildings where it is impossible or not economically practical, to achieve the new build standards.
21. For example, where there is a change of use, the premises may well require higher levels of structural fire resistance. While this is easy to achieve in a new building, it may be so expensive to improve an existing floor or to replace all the doors, that a scheme is not economically viable. In historic buildings this problem may be compounded by the desire, and perhaps the mandatory requirement, to preserve the interior and features of the property. In existing premises it may be very hard to establish what are the present levels of fire resistance when the materials and elements clearly cannot have any test certificates, and it is unreasonable and unsatisfactory to expect destructive testing to be undertaken.
22. The dilemma over existing and new buildings is not restricted to fire safety issues, and can occur in relation to many parts of the current Technical Standards. The issue of access requirements for the disabled, while fairly simple to satisfy in new buildings, can be extremely difficult where they are necessitated by the change of use of an existing building. Similarly problems can be found in satisfying the requirements for energy conservation in many existing buildings being put to new uses.
4.1 Is it reasonable to have one common standard for both new and existing buildings, or should a lower standard be accepted in some existing buildings ?
4.2 Should historic buildings be exempt from some parts of the Technical Standards ?
23. Standards based on function and performance were a key recommendation of the Guest report and are now widely recognised as the necessary basis for a modern building control system. Functional standards are those set by reference to the function which must be carried out, for example the ground floor must be accessible to people in wheelchairs. Performance standards are those set by reference to a measurable level of performance, for example the structure must be able to survive the effects of a fire for a set period of time. Prescriptive standards which specify precisely how a building must be constructed (for example the external wall must be one metre away from the boundary) were regarded as being inhibiting on design, but necessary where it was impossible to measure performance.
24. Although functional and performance standards were acknowledged as desirable it is arguable that the Scottish system remains essentially prescriptive. The current solution is for the applicant to seek relaxation, but this process can be slow and induce an uncomfortably confrontational aspect into the discussions between applicants and authorities. Appeals to the Scottish Executive can only be made against refusal to grant a relaxation or the relevance of the regulations themselves, they cannot be made about the interpretation of the Regulations by local authorities. On issues of interpretation, challenge has to be made through the courts, and this is hardly ever used because it is impractical on a building project where completion is required to a deadline.
25. It is important to improve the efficiency and effectiveness of the system and to ensure that the approval process does not limit innovation. It is also desirable to simplify the system and to ensure that it does not cause undue delays within the construction process.
Question 5 : Mandatory or Advisory
26. The current regulations are in functional form, but can only be satisfied by compliance with the Technical Standards. These are a mixture of prescriptive requirements and functional or performance requirements supported by Deemed to Satisfy Provisions. Functional standards are fine for regulations, but less ideal for the Technical Standards. They describe the requirements in terms of what is "suitable" or "adequate" when the applicant for a warrant is entitled to be able to ascertain from the law exactly what standard they must achieve to be within it. Performance standards clearly have the advantage of offering greater flexibility for the designer in offering alternative and equivalent specifications. The Deemed to Satisfy Provisions have been accepted very cautiously. Some local authorities regard these as the only acceptable specifications, when there should really be no bar to an applicant offering alternative specifications provided these equally satisfy the intention of the Regulations.
27. There is an inherent contradiction in the requirements for flexibility to deal with unusual situations and innovative designs, and for uniformity in standards throughout the country. It is debatable if this will ever be fully resolved, however it is important to ensure that the maximum flexibility is provided without jeopardising the intentions behind the regulations. Uniformity was felt to be essential to ensure that designers working anywhere would face the same requirements. Flexibility is clearly necessary to deal with the site specific problems which inevitably arise in many projects. It can be argued that in some of the subjects covered by the Technical Standards uniformity is not critical, and perhaps they should reflect local climate, materials and tradition in line with sustainable development. If the Technical Standards became performance based in combination with functional regulations, then it should be able to improve the current system for dispensation and relaxation.
28. The European Construction Products Directive is concerned with reducing barriers to trade within the European Union. This is gradually leading to the development of harmonised European standards and methods of test. It is essential that these methods of test are available for compliance with the Technical Standards, and for them therefore to be included within Deemed to Satisfy Provisions, or to form the methods of assessment for performance based standards. One problem with the current system is the length of time required to amend the standards. It is anticipated that over the next three years some 2000 European standards will be issued, many of which will require to be included within the Technical Standards.
5.1 Where should the line be drawn between what is mandatory and advisory ?
5.2 How should flexibility be balanced with uniformity ?
5.3 Should the line between mandatory and advisory vary with different projects ?
5.4 Should prescriptive standards be retained to assist with small projects ?
5.5 How can the system be improved to allow the easy adoption of European harmonised standards ?
Question 6 : Frequency of Revisions
29. At present, a number of Parts of Technical Standards are revised at each amendment. These amendments occur about every two years, and each Part is probably considered at least every third or fourth amendment. This may mean that it is six or eight years between revisions of individual sections. Therefore, for much of the time the Technical Standards in force may be dated and it is not possible to quote from the most recent British Standards, or to use examples of best practice as produced by trade associations or specialist bodies like the Building Research Establishment. Any new system which provided for more regular updates would have to balance this against the need to avoid confusing people with an ever changing standard. The introduction of European harmonised standards as already described will also become a factor in the frequency of revisions, as the EC expectation is that European Standards will be recognised in a rolling programme, not periodic revisions.
6.1 What is the optimal interval between revisions of the Technical Standards ?
6.2 How much time should be allowed between the publication of new standards and their coming into force ?
30. Linked to the idea of building control as a form of consumer protection is the issue of inspection. If the function of inspection is only to ensure that the building being erected is as set out in the drawings for which a warrant was given then it is not particularly onerous. However, if it is also concerned with the quality of construction then it will overlap with the responsibility of the architect, designer, clerk of works, the National House-Building Council if appropriate, or the clients themselves. These responsibilities would have to be clearly and unambiguously clarified.
31. The frequency of inspections has probably been decreasing over the last forty years, while the number of projects has increased. Many local authorities find it difficult to argue for the resources needed to support the levels of inspection which they would like to see. The need to specify building control procedures tightly to comply with the Best Value regime has highlighted anomalies and gaps in the test procedures which have several liability and service delivery consequences.
7.1 How important are site inspections to the building control system ?
7.2 At what stages in the building process should these occur ?
7.3 How well does the role of the building control inspection relate to that of the Clerk of Works and the contractor’s own quality control system ?
Question 8 : Major and minor projects
32. The differences between large and small buildings in terms of materials and technology is much greater in 2000 than it was in 1959, and having a single uniform system of control is perhaps no longer appropriate. Normally it is the large buildings and complex projects which use innovative materials, new methods of contracting and new developments in construction technology.
33. Just as it can be argued that there might be a need to differentiate between major and minor projects in terms of acceptable solutions, there could also be different procedures for handling and assessing large and small developments. The warrant procedures apply to all kinds of work from kitchen extensions to fast-track commercial projects and, in principle, they all have to go through the same process. In the case of the largest building projects the intended process of design, submission for warrant, warrant, and then construction is completely inappropriate. It is assumed that all work must be planned before start on site is made, and that there is knowledge of final occupants and uses available before construction. However, in reality the design process may last years and the building process will begin long before the design process has been completed. The use of the building, or some parts of it, may change during this process, and in some complex building (e.g. hospitals, shopping centres) almost certainly will. In an attempt to solve this dilemma the procedure of granting warrants in stages has been developed, which enables developments to begin before the design is complete. Unfortunately, this is not sufficiently flexible to adequately solve the problem.
34. There are also suggestions that the current process can inhibit "fast-track" developments. It is an offence to erect a building or alter, extend or vary the use of an existing building without first obtaining a warrant. It is alleged that this can inhibit development when the building is needed at very short notice. Careful consideration is needed as to whether a different approach should be adopted for such buildings as it is contrary to the present system of pre-emptive building control. However the speed of development has greatly increased, and the time taken to obtain warrants is no longer acceptable to many commercial clients.
35. The "fast-track" process of building procurement can be accompanied with an equally short life cycle for the building. It can be argued that a shorter commercial cycle can mean that buildings are erected for a specific purpose and in consequence should be assessed as such, rather than being treated as members of a purpose group which may undergo future changes of ownership. Although there are provisions at present for warrants to be issued with a limited life for buildings where a higher standard would be needed if they were to be permanent, this does not fully resolve the problem. The provisions are not flexible enough to deal with most of the current proposals and raise issues of durability and possibly sustainability.
8.1 Should the system permit greater flexibility and alternative solutions in larger or more innovative buildings ?
8.2 Are the benefits of a single uniform system outweighed by the difficulties sometimes encountered on projects of widely varying size and complexity?
Question 9 : Harmonisation within the United Kingdom
36. The general policy of successive governments has been to work towards achieving common building standards in all parts of the United Kingdom. However this is difficult because of the legislative differences which require mandatory standards in Scotland, while only advisory standards in England and Wales. In Scotland all buildings must meet the Technical Standards. In England and Wales they must only satisfy functional requirements, and although detailed advice is provided within Approved Documents there is no compulsion to follow it.
37. Clients operating across Britain find differences in requirements in the various parts of the country very inefficient, and technical differences in the standards within the UK have been commented on adversely in Westminster. This is not to say that harmonisation should always mean that Scotland must fall into line with England and Wales. The introduction of harmonised European test standards will lead to some harmonisation within Europe, however this will be in test methods rather than levels of provision, at least at first.
9.1 How important is it to ensure that there is technical harmonisation between different jurisdictions within the United Kingdom ?
9.2 Is the concept of harmonised building standards across the European Union worth consideration ?
Administration of the regulations
38. The existing system of building control sets standards nationally, but leaves enforcement and interpretation to local authorities. Although the need for a unified national set of standards which was addressed in the Guest report is no longer questioned, the devolution of powers in connection with interpretation and administration to local authorities is still subject to debate. Even the role of a third party to scrutinise development prior to construction to ensure that the public interest is protected has been questioned and the best way of ensuring public confidence debated.
Question 10 : Consistency in interpretation and application
39. The degree of political involvement varies between building control authorities; in some the officers have completely delegated authority, in others the relevant committee of the council retain certain functions (normally to do with decisions on relaxations). Local influence is not limited to political involvement, the devolution of powers to local authorities has led to different levels of funding and operational priorities. Management structures vary, with building control sometimes being linked to planning, in other authorities to environmental health, in others to development.
40. Administration, interpretation and relaxation of the Technical Standards by thirty-two different local authorities inevitably lead to some degree of inconsistency. The right of appeal against refusal to grant a relaxation does offer some alternative to the applicant, but this can be a fairly slow and cumbersome route which may impose strains on the construction process through uncertainty. Such inconsistencies are considered to be a serious problem by developers seeking warrants for identical designs in different local authority areas, in particular house builders. Manufacturers and suppliers have also expressed concern that they can easily market building products and components in some areas, while finding apparently contradictory responses in other parts of the country.
41. Building control was originally administered at local authority level because it dealt with issues between neighbours. This function has been partly passed to planning and partly put aside. If this role is no longer important is there perhaps less need for control to be done through local authorities. There may be an argument for fewer building control authorities, or greater co-ordination between them
10.1 How can consistency be improved ?
Question 11 : Integration with other local authority functions
42. Local authorities are responsible for a number of other functions which link very closely with building control, in particular planning applications and matters requiring consent from the highways authority. It has been suggested that there is a need to establish a closer alignment of planning and building control procedures, in particular for minor works to dwellings. There have already been experiments with "one-stop shop" initiatives to see if there is a more effective method of harmonising these services. The Scottish Executive has been conducting research into "One Stop Shop Arrangements for Development Related Local Authority Functions" and identified numerous models for such integrated development in different local authorities. For the householder involved in minor works, concerned about a simple and speedy response to their requests, building control may be indistinguishable from planning, even though they are distinct services with separate functions and administration.
11.1 How can the current system of approvals be simplified and improved ?
11.2 Should there be a "one-stop shop" approach for some, or all, projects ?
Question 12 : Self-certification
43. It can be argued that the scrutiny of designs to ensure compliance with the Technical Standards does not have to be by a third party. There are provisions within the existing legislation to permit self certification by appropriately qualified and experienced practitioners. However, that system never developed past the first area that was permitted (i.e. structural design), because it was impossible to develop a self certification regime which all professionals would accept. There are problems in establishing what defines competence, who is liable, individual v. firm etc. As self-certification is already allowed for structural design, an argument can be made that this principle be extended to other areas without the loss of integrity, (e.g. fire safety by chartered fire engineers, energy issues by energy specialists etc.).
12.1 Should certain designers and architects be allowed to self-certify buildings, or perhaps specific parts of buildings ?
12.2 Should builders be able to certify aspects of construction and compliance ?
44. Even if third party certification is to be retained, an argument can be made that the choice of that third party should be left to the applicant. England and Wales have introduced a system of Approved Inspectors and the building designer has a choice of either having his building checked by the local authority or an Approved Inspector. For some clients and their architects the choice of an Approved Inspector offers the opportunity to perhaps pay more for a faster service, or perhaps to achieve a cheaper service where there is repetition or a building type in which the Approved Inspector can offer particular expertise. Some Approved Inspectors may choose to specialise in particular building types (for example housing, or hospitals).
13.1 Should designers be allowed to choose who they wish to vouch for their buildings ?
45. There is provision within the present legislation for the charging of fees by local authorities in the exercise of their building control function. In line with the Government’s policy in the 1980’s of requiring payments for local authority services to match costs, building control departments have been moving towards a self-financing basis. However the variations in practice in local authority finance and structure make it impossible to determine the extent to which building control is now fully self-financing.
46. It is reasonable to expect the person undertaking and benefiting from the development to meet the costs of the building control process, however there are a number of anomalies. There is no simple, speedy and cheap procedure for the many very minor works caught by building control. There are many duties the building control officers carry out for which there is no specified fee. In the case of relaxations it is not considered right to charge people when it is the Building Regulations that may be inappropriate or inadequate. There is no flexibility to deal with applicants who decide against proceeding with a building project. At the same time the imposition of higher warrant fees has altered the public perception of building control and the service people can expect. Current expectations for both local and central government staffing do not match the kind of system set up originally, and neither does the system meet customer expectations. For example there is evidence that the number of site visits has had to be reduced, and previous checks on items like electrical installations are no longer made.
47. The government is already committed to "best value" and ensuring that models of best practice are followed wherever possible. This can be seen as ensuring that the applicant is receiving the best service possible for the warrant fee. The fee scale is related to the estimated cost of projects, but this is often a matter of dispute. The scale also has a high initial threshold because the full procedures apply to all applications.
14.1 How can the financing of the building control system be improved ?
14.2 How should building control functions not presently covered by the warrant fee be funded ?
48. At present Crown buildings are exempt from the building control. As the government’s intention is that all Crown buildings should achieve the same standard as that required within the Technical Standards it can be argued that there has been no damage to the public interest by this exclusion. At present private companies are contracted to check that standards are maintained. However it is the intention of the Scottish Executive to remove Crown Immunity from the planning system, and there is an argument for consistency in approach.
15.1 In terms of the machinery of building control would it be better if Crown buildings were treated exactly as all other buildings ?
49. The Building Standards Advisory Committee (BSAC) is the statutory body charged with advising the Scottish Executive on the content of regulations and the operation of the system. The committee has 14 members who comprise a cross-section of those involved in the building control process. The full committee meets three times per year, but much of its work is done through sub-committees which play a significant role in reviewing and revising particular parts of the Technical standards. While BSAC provides a valuable oversight of the system and the proposed amendments to standards there is no other monitoring of building control. Until recently the only statistics collected were a financial return but to support "best value" key performance indicators are being developed in association with the Accounts Commission. The existing Act does not set targets except for appeals and enforcement notices.
16.1 Is there a need for greater monitoring of the system ?
16.2 If there is a need for greater monitoring of the system, what form should this take ?
16.3 Is there a need to set performance indicators?
50. A mandatory system of building control needs to be underpinned by a credible system of enforcement, one which will deter those who are evading compliance, while enabling those who need reassurance about the nature of works previously undertaken to be satisfied.
Question 17 : Unauthorised alterations
51. Many minor works are carried out without an application for warrant having been made. These often only come to light when the property changes hands and there is a desire by purchasers to ensure that they will not be liable for remedial works. The present legislation did not foresee the scale, type and extent of unauthorised works that has taken place, and did not anticipate the role of building control is now playing in house purchase. The result has been the growth of unofficial systems with "letters of comfort" potentially full of anomalies and unfairness. It has caused delays, frustrations and additional costs in property sales and purchases. The validity and liabilities stemming from such letters have not been tested in the courts, but the situation is clearly in need of improvement.
17.1 How can unauthorised alterations be brought within the system ?
17.2 How can house buyers be assured that any works which have been undertaken were in compliance with the Technical Standards ?
17.3 Should there be a cut-off date before which alterations made can be ignored ?
17.4 Should there be a cut-off on size so that works below that threshold are ignored ?
Question 18 : Dangerous Buildings
52. The current legislation gives local authorities the power to take action when a building becomes dangerous and a threat to public safety. However there are practical difficulties in:
18.1 How is it possible to improve on the system for handling dangerous buildings ?
18.2 Is it necessary to deal with buildings in disrepair before they become dangerous, or is other existing legislation adequate ?
Question 19 : Enforcement procedures
53. The existing legislation gives local authorities powers to deal with buildings constructed without a warrant or in contravention of a warrant. These powers may be used as a threat, but cases are almost never brought to court because the bluntness of the instrument means it can fail utterly in the face of a recalcitrant builder. The back-up powers of local authorities to do the work themselves and charge the building owners, if necessary using a charging order on the land to obtain the refund, are almost impractical. Even where attempts to use them have been made, the Courts have sometimes failed to back up local authorities. The offences which are included in the legislation are backed by relatively small fines. This is clearly an unsatisfactory position which should be resolved.
19.1 To be effective a mandatory building control system must at the last resort have an effect system of enforcement, how can this best be delivered ?
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