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CONSULTATION ON REGULATIONS IN SUPPORT OF THE BUILDING (SCOTLAND) ACT

1 General

1.1 Introduction

1.1.1 This handbook explains the procedures set out in the Building (Scotland) Act 2003 and the Building (Scotland) Procedures Regulations 2004. The procedures are for work to which the Scottish building regulations apply and for other matters covered by the building Act, in particular those dealing with dangerous and defective buildings. (Chapter 2 of this handbook explains the application of the building regulations, and chapters 10 and 11 cover dangerous and defective buildings).

1.1.2 The purpose of the handbook is to clarify the intent of the procedure regulations. Unlike the Technical Handbooks and other guidance documents issued by Scottish Ministers to support the building regulations, this procedural handbook has no specific legal status, but is designed to aid the practical operation of the procedures.

1.2 The Building Standards System in Scotland - Background

1.2.1 The building standards system in Scotland is established by the Building (Scotland) Act 2003. The Act gives powers to the Scottish Ministers to make building regulations, procedure regulations, fees regulations and other supporting legislation as necessary to fulfil the purposes of the Act. These purposes include setting building standards and dealing with dangerous and defective buildings. The various regulations are made by the Scottish Ministers, but must be approved by the Scottish Parliament before coming into force.

1.2.2 The system is intended to ensure that building work on both new and existing buildings results in buildings that meet reasonable standards. The standards are set out in the building regulations, which are, in the terms of the Act, intended to:

• secure the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings,
• further the conservation of fuel and power, and
• further the achievement of sustainable development.

1.2.3 The building regulations and guidance documents, where they use technical specifications to describe materials or constructions, are also subject to scrutiny by the European Commission and the member states of the European Economic Area. This check is intended to ensure that no barriers to trade in construction products are being created. This scrutiny procedure is necessary because of the EC Construction Products Directive. To meet the Directive, references to materials and construction methods in our regulations and guidance documents must be made in the terms used in European Standards for products and test methods. (The Directive allows for the ‘harmonization’ of standards before they must be used. It took ten years or so for member states to agree the first harmonized standards but these are now being regularly produced).

1.3 Purpose of the building standards system

1.3.1 The purpose of the building standards system is to protect the public interest. It is not intended to provide protection to a client in a contract with a builder. The system therefore does not so much control building as set out the essential standards to be met when building takes place, and only to the extent necessary to meet the building regulations.

1.3.2 The system is pre-emptive, designed to check that what is proposed to be built meets the standards. Checks during construction and on completion are limited to the extent necessary to encourage compliance with the legislation, and do not provide a system to control work on site. That is a matter for the contracts and arrangements put in place between the client and builder.

1.3.3 The roles established to operate the system are explained in detail below. The role of checking compliance rests with verifiers, enforcement is by Local Authorities, and the system is overseen and updated by the Scottish Building Standards Agency, advised by the Building Standards Advisory Committee. The Agency is an executive Agency of the Scottish Executive Development Department, which means it is an integral part of the Scottish Executive and answers directly to the responsible Scottish Minister.

1.4 Scottish Building Standards Agency

1.4.1 The Agency [was] established in 2004 to fulfil the duties placed on the Scottish Ministers by the 2003 Act. The Agency prepares and updates building standards legislation and guidance documents, conducting any necessary research and consulting on changes as the Act requires. It provides the secretariat for the Building Standards Advisory Committee (see paragraphs at 1.5 below). The Agency also, on behalf of the Scottish Ministers, gives views (see paragraphs at 1.7 below) to help verifiers make decisions in particular cases, and deals with applications to relax standards for particular matters. It approves verifiers, and certifiers of design and construction (see paragraphs at 1.9 below) and it checks how verifiers, including local authorities, and certification scheme providers are operating the system. It handles Crown building verification [Note this only applies when the relevant section of the Act is brought into force]. Finally, should it be necessary, the Scottish Ministers can, through the Agency, take over the enforcement role of a local authority.

1.5 Building Standards Advisory Committee

1.5.1 This committee, established under the previous Scottish building Act, has been continued by the 2003 Act but given a wider remit. It is required to report to the Scottish Ministers on aspects of the building standards system that may need attention. It considers developments in the industry, changes in public expectations or particular problems that arise. It must also be consulted on all proposed amendments to legislation or guidance documents. The secretariat to the committee is provided by the Agency.

1.5.2 The intention of the committee is to provide expert advice. The members are not selected to represent particular interests, but for what experience and knowledge they can bring to the committee.

1.6 The Building Standards Forum

1.6.1 The Agency also works closely with the Scottish Association of Building Standards Managers (officers from the Scottish local authorities), including meeting formally at least three times a year at the building standards forum. The role of the forum is to discuss problems arising from the legislation and procedures or arising from common building practices. Where possible, agreed guidance is produced to aid common understanding and to encourage the effective operation of the building standards system.

1.7 Verifiers

1.7.1 The role of the verifier is to protect the public interest by providing an independent check of applications for building warrants to construct or demolish buildings, to provide services, fittings or equipment in buildings, or to convert buildings. Verifiers are appointed by the Scottish Ministers.

1.7.2 The Act provides for a variety of verifiers should this be required, but at present the only appointed verifiers are [the 32 Scottish local authorities, each looking after their own area]. [The Scottish Building Standards Agency fulfils the verifier role for Crown Buildings.] [Note — this advice on verifiers will depend on the actual appointments, which are not complete at the time of this consultation]

1.8 Local Authorities Enforcement Role

1.8.1 It is considered necessary to have an ongoing, independent body to enforce building legislation, with local knowledge and resources. The Act therefore provides for enforcement to be the responsibility of the local authority for the area in which the problematic building work is taking or has taken place. This is the case no matter who has undertaken the verification role [and will apply to Crown Buildings after section 53 of the Act has been brought into force].

1.8.2 A local authority choosing to contract out building standards work under the ‘best value’ regime must consider the technical work involved in enforcement. The local authority must be capable of dealing with the duties in Part 3 of the Act relating to compliance and enforcement. Consideration must also be given to the roles under Part 4, defective and dangerous buildings.

1.9 Approved Certifiers

1.9.1 The Act establishes a role for suitably qualified people, businesses or other bodies, when approved by the Scottish Ministers, to certify that certain design or construction work complies with the building regulations. Two roles are designated, certifiers of design and certifiers of construction.

1.9.2 Approved certifiers of design are responsible for either specified aspects of the design of buildings, such as the structure or energy performance, or specific parts such as a space heating system. If satisfied that the proposed design meets the requirements of the building regulations, approved certifiers of design may issue a certificate for submission with the application for building warrant. Certifiers must have due regard for compliance with the full range of relevant requirements, not just those of immediate relevance. For instance, design of a central heating and hot water system should take into account requirements for accessibility and for fire separation and acoustic insulation of separating walls and floors as well as those for energy efficiency and hot water storage. The certificate is taken as proof of what it purports to cover, and the verifier does not check those matters. A verifier must however check the certifier is on the list of those approved certifiers suitably qualified to issue the certificate of design in relation to the matters certified. (see chapter 13 below).

1.9.3 Approved certifiers of construction are responsible for the construction or installation of specified parts of a building, such as the structural frame, the electrical installation or a combustion appliance. Again, certifiers must have due regard for compliance with the full range of relevant requirements, not just those of immediate relevance to the part of the building covered. If satisfied that the construction has been completed in accordance with the building regulations as they applied at the time of the application for the building warrant, approved certifiers of construction can issue a certificate for submission with a Completion Certificate. The certificate of construction is taken as proof of what it purports to cover, and the verifier does not check those matters. A verifier must however check the certifier is on the list of those approved certifiers suitably qualified to issue the certificate of construction in relation to the aspects certified. (see chapter 13 below).

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