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CONSULTATION ON REGULATIONS IN SUPPORT OF THE BUILDING (SCOTLAND)
ACT
Building (Procedure) (Scotland) Regulations
Introductory Paper
The first part of the consultation concerns the Building (Procedure) (Scotland)
Regulations and comprises:
- this introductory paper,
- a new Procedural Handbook,
- a more detailed document on Approved Certifiers, and
- a draft of the regulations.
The Handbook explains how the procedures from the Act, extended by those detailed
in the procedure regulations, form the framework for operating the new Scottish
building standards system. Appropriate procedures for other matters in the Act,
for example dealing with dangerous or defective buildings, are also described
in the Handbook. Please note that certain sections of the Handbook are in square
brackets, indicating where decisions on legislation or guidance are still to
be taken. The regulations are still being refined and the views of respondents
will be considered when finalising the text once the consultation on the proposals
in the Handbook is completed
As the new system has evolved from the existing, there is much that appears
familiar in the procedures, but care must be taken to recognise the new legislative
background and the differences that arise from it. This paper attempts to highlight
where the most important differences can be found.
Related matters in separate consultation.
The fees for the new system are in separate documents and draft regulations
(this is unlike fees for the current system which are dealt with in the existing
procedure regulations). These documents will be consulted on separately.
The existing building forms regulations will also have to be replaced. As far
as possible, new forms will be based on model forms to be issued by the Building
Standards Agency. However forms of particular importance, such as that for submitting
a completion certificate, will probably be prescribed by Statutory Instrument.
Regulations and models to cover all the necessary forms will again be consulted
on separately at a later date.
Before building work starts
The new building standards system continues with the principle that a building
warrant must be obtained before work starts on site. (Note however, under the
new building regulations, much more work in houses (but not flats) will not
require a warrant. This is also the case for simple non residential buildings
where the public do not normally have access).
Warrant applications must be made to ‘verifiers’. For the start of
the system, local authorities will be the only approved verifiers. The system
can however accommodate other verifiers should that become necessary.
The details of the information that should accompany an application are now
in the Handbook rather than the regulations. There is no requirement for ‘durable’
copies of applications, and electronic submissions are permitted wherever verifiers
have suitable equipment and software to receive them. Drawings still have to
be signed. The regulations clarify that colour or shading is a requirement to
distinguish new work in existing buildings, but not in completely new buildings.
The provisions for keeping a register of warrant applications is considerably
extended. The new building standards register will record details of notices
as well as warrants and accepted completion certificates. More formal arrangements
are made in relation to the storage and access of drawings.
How functional standards apply
A big change in procedures is that Local Authorities, as verifiers, can no
longer grant relaxations. The new form of the regulations means that the mandatory
requirements against which verifiers assess an application are functional standards,
not detailed specified standards. In most cases therefore the verifier will
be able to decide that the approach suggested is acceptable without the need
for a relaxation.
To assist with cases where there is doubt about whether a proposal complies,
Scottish Ministers, through the Scottish Building Standards Agency, may be approached
for a view on the matter. There will be a charge for this service. The view
offered must be taken into account by the verifier, but the verifier retains
the final say on whether to accept the proposal. The applicant has a right of
appeal to the sheriff court when a verifier refuses to grant a warrant.
It is still possible for building regulations to be relaxed or dispensed with,
but given the basic flexibility of the new system this is expected to be rarely
needed. An application must be made to the agency, acting for Scottish Ministers.
Another major change, in relation to the standards that must be met, relates
to the dropping of the concept of ‘change of use’. Briefly, this meant
that when an existing building was being altered, if more onerous standards
applied to any part of the building that was being altered, the full requirements
of the standards had to be met. ‘More onerous’ was however judged
by comparing the current standards that applied to each of the two different
uses, not by comparing the actual construction to any standard. With the general
increase in standards in recent years, this form of requirement meant many alterations
did not have to meet any higher requirement. For example, as insulation requirements
for most buildings are now the same, moving from say warehouse to flats did
not mean a ‘more onerous’ thermal insulation regulation applied, so
the flats did not have to meet current standards. The only requirement was that
the work would not make the insulation worse than before the work was done.
The new system has therefore moved to a concept of defined ‘conversions’.
This now means that where there is a change in the occupancy or use of an existing
building, if the change falls into one of the categories defined in schedule
2 of the proposed new building regulations then the current standards must be
met. This is recognised as likely to be difficult in existing buildings, so
schedule 6 of the new regulations applies the standards differently for conversions.
The schedule splits the standards into those where the full current standard
is required, and those where they must be met only to the extent it is reasonably
practicable to do so. Applicants will be expected, when making defined conversions,
to show how they are meeting all the required standards and also making all
reasonable improvements in relation to the other standards.
For other alterations, the current standards will apply to the building work
being done, but there will be no requirement to upgrade any remaining construction
unless it has been adversely affected by the alteration. (The critical cases
are intended to be covered by the defined conversions, or to be covered by other
existing legislation related to workplaces).
Determination of warrant applications
Another change at the warrant application stage is to allow approved certifiers
of design to certify to verifiers that prescribed aspects of the design meet
the requirements of the regulations. This procedure replaces the present self-certification
of structures, and potentially allows other specialisms to be covered as well.
At the time of this consultation discussions with a variety of bodies are underway
to create schemes to approve certifiers of design.
A time limit of three months is now set for a first report on a warrant application.
If that time is not met, or if a warrant has not been determined within one
year (subject to extension to cover relaxation procedures) it is deemed to have
been refused. This will allow an appeal to made.
Work on site
When work starts on site, the verifier must be informed. Thereafter, the only
other times when the verifier is informed are when drains are laid but still
exposed, when drains are completed and covered, and at the completion of the
project. The verifier can choose whether to inspect at these times, or at any
other time. The system does not rely on, nor provide, regular site inspections.
The verifier must also be informed as to which parts of the work are to be
certified, before the start of such work on site. Verifiers will then not inspect
such work.
A more flexible set of agreed stages is permitted, so that stage warrants can
be used more effectively. The handbook however explains the way shell and fit
out type projects should be arranged, which may differ from practice in some
areas at present. Briefly, a completion certificate can only be accepted for
completed buildings.
When work is completed
The ‘relevant’ person (as defined in the Act) must submit a completion
certificate when the work is complete. The responsibility of the applicant to
ensure the building work complies with the regulations is emphasised in the
new system by the verifier accepting a certificate rather than granting one.
Another change is the inclusion of approved certifiers of construction, who
can certify to the relevant person that particular parts of the work as constructed
comply with the building regulations. This procedure replaces the present electrical
certification procedure and potentially allows other aspects of the work to
be covered in this way. Again, discussions with various bodies are underway
during this consultation period to create schemes to approve certifiers of construction.
Unauthorised work
Work started without a warrant can now be dealt with in two ways. As before,
an enforcement notice may be issued by a local authority, but a verifier can
now accept a late application for warrant at any time before a completion certificate
has been accepted for the work. It is expected this will become the normal way
of dealing with such cases, particularly where the person doing the work has
not understood the legal requirement. However the application must be judged
against the regulations and guidance current when the application is made.
For work completed without a warrant, as before an enforcement notice may be
issued by a local authority, but again an alternative is provided. Now a completion
certificate may be submitted after the work is complete, and a warrant is not
required. However, the completion certificate must be submitted with full drawings
as for a warrant application, and the fee will take account of the difficulty
the verifier has in establishing whether the as built construction actually
meets the regulations (see consultation on fees for details). In addition, the
regulations against which such an application will be judged are those at the
time the completion certificate is submitted.
Both the above measures are designed to accommodate those who, perhaps from
ignorance of the law, have started or completed work without a warrant, but
without giving them any advantage over those who have complied properly with
the legal requirements.
Dangerous buildings
The previous legal provisions are somewhat modified, with more guidance given
in the Handbook on how consultation over Historic buildings should take place.
Notice procedures are simpler than those in the 1959 Act. The enforcement power
is given to local authorities, but note that the Act now simply requires notices
to be followed by action. There is no provision for ‘orders’. It will
be necessary to give warning of intent to serve a notice, and to hold any hearing
etc. based on the intent. Note that charging orders will no longer be available
for recovering expenditure but compulsory purchase, or the sale of materials
from demolished buildings, will still be permitted. Otherwise, recovery is as
with any other debt, with some qualifications in section 44 of the Act protecting
trustees and similar persons.
Defective buildings
One way of dealing with buildings in need of repair has been incorporated from
the Civic Government (Scotland) Act 1982. As with dangerous buildings there
is a notice procedure, under which a local authority may require the owner of
a building to carry out necessary repairs. Similar procedures for acting on
warnings of intention to serve a notice are used. The system for identifying
whether notices are required is strengthened by giving local authorities greater
powers of access to inspect buildings.
Transitional Arrangements
When the new system is introduced any application, appeal, reference or other
procedure commenced under the previous system which is still outstanding will
be determined under the regulations in force when the application etc. commenced.
However there will be a time limit. For any warrant was obtained before the
new system comes into force, the applicant would have a maximum of five years
(i.e. three years plus extensions up to two years) to complete the project.
Any works not completed by that date would have to be considered under the new
system, which has a variety of ways of dealing with work in progress, although
there may be considerable practical and therefore cost implications for those
whose warrant approval has expired.
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