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

2 Application of the Building Regulations

2.1 Building (Scotland) Regulations 2004

2.1.1 The Scottish building regulations are made under the powers in section 1 of the Act. The regulations apply to the design, construction or demolition of a building, the provision of services, fittings or equipment in or in connection with a building, and the conversion of a building. Construction applies widely, and includes alteration and extension as well as new building. Conversion however is restricted to prescribed changes of intended use or occupation (see schedule 2 of the building regulations). Where a conversion is to be made, building work will have to be done so that all the relevant standards will be met, to the extent specified in schedule 6 of the building regulations.

2.1.2 Other than in relation to conversion, the building regulations do not generally require existing buildings to be the subject of work or altered unless the owner intends to do building work. However there are ways that the regulations can require work when it is really necessary. One way is for continuing requirements to apply. A building owner can accept them as a condition when a building warrant is granted (section 22 of the Act), for example a requirement to ensure continued access to allow the operation of a safety or maintenance device, such as a mobile platform. Also the Scottish Ministers can impose continuing requirements on a particular class of building (section 2 of the Act), for example requiring all public buildings to display certain information about energy use (see paragraphs at 7.3 and 7.4 below).

2.1.3 A second way is for the Scottish Ministers to require all existing buildings of a particular type to comply with a provision of the current regulations (section 25 of the Act). Local Authorities will be directed to serve notices on the owners of all such buildings. This power is expected to be used rarely, but can be used if particular problems come to light.

2.2 Guidance documents and compliance with the building regulations

2.2.1 The building regulations are expressed in terms of ‘functional standards’. These standards are statements of functions the completed building must fulfil or allow. For example ‘Every building must be designed and constructed in such a way that there will not be a threat to the building or the health of the occupants as a result of moisture penetration from the ground’. The intention is to permit a variety of ways of complying. In the above example, the standard does not specify e.g. the floor must have a damp proof membrane, as this may not always be relevant. What is needed for compliance depends on the materials chosen, the site conditions, and the use of the building.

2.2.2 To give guidance on possible ways of complying, the Scottish Ministers issue guidance documents through the Agency. The principal documents are the Technical Handbooks, one for domestic buildings and one for non-domestic. Proof of compliance with such a document may be relied on in any legal dispute as ‘tending to negate liability’ for an alleged contravention of building regulations. For most situations therefore it is expected that designing in accordance with the Technical Handbooks will be the usual way of showing that the functional standards are going to be met. However the verifier is judging against the functional standard, and has the power to decide whether other solutions fulfil the requirement. This also allows judgement of where local site conditions, as mentioned in paragraph 2.2.1 above, or the construction or historical relevance of an existing building, may affect what is a reasonable way of fulfilling the standards (see paragraphs at 3.7 below).

2.2.3 One important alternative is the acceptance of solutions based on the growing number of European Standards, and on technical specifications recognised in other Member States of the European Economic Area where these provide equivalent or better standards of protection or performance. The functional standards are arranged in the same sections as the ‘essential requirements’ published by the European Commission to support the Construction Products Directive. This arrangement should assist in the evaluation of different standards for construction materials, tests and assemblies. It is however the applicant that must convince the verifier, and must provide the verifier with translations of documents if necessary.

2.3 Exempt work

2.3.1 The procedures in this handbook do not apply in any way to building work and structures that are excluded from the definition of building in the Act (see section 55).

2.3.2 However work on buildings, services, fittings and equipment that is listed as ‘exempt’ in Schedule 1 of the building regulations is exempt only from regulations 5 and 8 to 12, i.e. those regulations imposing standards. Thus such work, while neither required to meet a particular standard nor subject to warrant procedures, is still subject to the regulations about protective works or, under the Act, to the provisions for dangerous or defective buildings.

2.4 Work not requiring a warrant

2.4.1 The procedures for obtaining a warrant and submitting a Completion Certificate also do not apply to certain other defined types of work. Schedule 3 of the building regulations lists buildings and building work, including the provision of services, fittings and equipment that do not require a warrant.

2.4.2 The important difference from ‘exempt work’ is that this ‘work not requiring a warrant’ must still comply with the building standards set in the building regulations.

2.4.3 Note however that Schedule 3 work is in two parts. The work listed in Part A must meet the standards in full, but the work listed in Part B need only be done in such a way that the completed result is not made worse in relation to the standards. The type of work in Part B is permitted to allow the repair of buildings. For example, should the tiles on a roof require to be replaced, this can be done without any need to upgrade the structure, insulation or similar aspects, and no warrant is required. [Separate guidance has been prepared for issue by local authorities to assist those preparing to carry out work not requiring a warrant — not yet available.]

2.4.4 Owners wishing to carry out ‘work not requiring a warrant’ may wish to employ certifiers of design and/or construction as a way of ensuring that the work does meet the standards. No submission to a verifier is needed, but some evidence of the use of a certifier may be useful at any future transfer of property (see chapter 13 below).

Notes:

(1) The work is only exempt from the requirements to obtain a building warrant if it is no worse than existing. If it is worse, a building warrant should have been obtained, so a warrant enforcement notice can be served.

(2) The work is only exempt from the requirements to obtain a building warrant if it meets the standards. If it does not meet the standards, a building warrant should have been obtained so a warrant enforcement notice can be served.

2.5 Crown buildings

2.5.1 The Act binds the Crown, but the secondary legislation can differentiate as to which procedures apply. [A separate handbook provides guidance on the procedures/Procedures are set out below — to be decided when the section of the Act binding the Crown comes into force]. [The procedure regulations will also be amended] [Separate procedure regulations will be made] at that time. [Yet to be decided].

2.5.2 Determining the ‘ownership’ of a Crown building is done by reference to sub-section 53(5) of the Act, and the final decision as to who is the owner lies with the Scottish Ministers.

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