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

7 Compliance and Enforcement

7.1 Building regulations compliance notices

7.1.1 Where the Scottish Ministers consider it essential that certain types of existing building should be required to comply with the current standards, they may direct local authorities to take action to secure that these buildings are made to comply. The local authorities must serve on the owners of identified buildings of the prescribed type a ‘building regulations compliance notice’ (see section 25 of Act). The local authorities may also serve a notice where it appears any other building of the prescribed type does not comply, and this provision of the Act will apply if the initial identification was of specific buildings. This power is limited to the purposes specified in the Act for the building regulations, and can be applied only to buildings of a type to which the building regulations apply.

7.1.2 The notice must specify the provision of the regulations, a date (not less than 28 days after the notice takes effect) after which the building must comply, any particular steps that must be taken, and the date of effect.

7.1.3 A warrant must be obtained for the work required, but if by the specified completion date the owner has applied for a warrant (and notified the local authority if in future the local authority is not the verifier) the local authority may alter the date by which the building must comply.

7.1.4 If by the final specified completion date the owner has not complied with the notice, the owner is guilty of an offence. The local authority may then carry out the necessary work to make the work comply with the specified provision and can recover the costs from the person. A local authority does not need a warrant to do work carried out so as to enforce a notice, but after completion the authority must register a Completion Certificate.

7.1.5 A local authority may withdraw a notice, or waive or relax any requirement of a notice, or substitute a later date for completion whenever it sees fit. Such a withdrawal does not, however, preclude the issue of a further notice.

Notes:

(1) The Agency will do this on behalf of the Scottish Ministers.
(2) Notices must be recorded on the Building Standards Register

7.2 Building warrant enforcement notices

7.2.1 In the following cases, where local authorities consider it necessary, a ‘building warrant enforcement notice’ may be served on the relevant person (see 7.2.3 below). The three cases are:

• that work requiring a warrant has been or is being done without a warrant,
• that work has been or is being done that is not in accordance with a warrant that has been granted, or
• that a limited life building has not been demolished by the expiry of the period for which a warrant has been granted.

7.2.2 Such a notice may require:

• in the first case, a Completion Certificate to be submitted for work that is completed, or a building warrant to be obtained if work is ongoing,
• in the second, that the work be altered to comply, or that an amendment to the warrant is obtained, and
• in the third, that a warrant to demolish is obtained and that the building is demolished.

7.2.3 The relevant person for the third case, demolition, is the owner, but in the other two cases the relevant person will be either:

• the person carrying out the work,
• the person on whose behalf the work is being carried out, or
• if the people above do not include the owner, cannot be found, or no longer have an interest in the building, the owner. Thus a notice can be served on a builder or developer if that is considered necessary.

7.2.4 The notice will specify a date by which these actions must be complete, although it will never be less than 28 days after the notice takes effect. The date of effect must also be specified on the notice.

7.2.5 In some cases, the local authority will specify particular steps that must be taken in complying with the notice. Where work that needs a warrant is being carried out without a warrant or not in accordance with a warrant, the local authority may suspend work (other than work for complying with the notice) until the notice is complied with.

7.2.6 If, before the completion date specified in the notice, the person on whom it is served applies for a relaxation, and informs the local authority of the application, the completion date must be respecified by the local authority. This date will now be not later than 28 days after the date of the decision on the application for a relaxation. Note however that an appeal does not invalidate a stop notice unless the Sheriff chooses to quash it.

7.2.7 If by the final specified completion date the person on whom the notice is served has not complied with the notice, the person is guilty of an offence. The local authority may then carry out the necessary work to make the work comply and can recover the costs from the person. Compliance is with the building regulations when the work is done without a warrant, and with the notice when the work is done not in accordance with a warrant. This can also apply to cases where a limited life building has not been demolished when specified. A local authority does not need a warrant to do work carried out to enforce a notice, but after completion must register a Completion Certificate.

7.2.8 A local authority may withdraw a notice, or waive or relax any requirement of a notice, or substitute a later date for completion whenever it sees fit. Such a withdrawal does not, however, preclude the issue of a further notice.

7.2.9 Although verifiers must accept a certificate of design as conclusive of the facts to which it relates when determining the application for warrant, this does not prevent verifiers, when checking work on site, from reporting failures to build in accordance with the warrant. A local authority could then serve a building warrant enforcement notice.

7.2.10 A certifier of construction should note that should they certify work that is not in accordance with the warrant without an amendment to the warrant being sought they are placing their client at risk of enforcement action. A certifier should not certify work that has been completed or is ongoing without sufficient checks, inspection or tests to ensure compliance with the warrant as finally amended and with building regulations.

7.3 Continuing requirements imposed by verifiers

7.3.1 Under section 22 of the Act, when granting a warrant or accepting a Completion Certificate, a verifier may impose a continuing requirement. Such a requirement imposes on a building owner a duty that the verifier feels must be fulfilled after the completion of the building to ensure the purposes of the building regulations are not frustrated.

7.3.2 This is not intended to cover matters that always rely on adequate maintenance, such as the operation of lifts or the recoating of woodwork. Nor is it for matters under Health and Safety or Fire Precautions legislation, such as testing of alarms. In general, it is also not for matters that involve action on the part of the owner. It is for special cases. A typical example would be acceptance of a moveable platform for cleaning windows subject to a continuing requirement that adequate access and hard surfaces are provided and then kept in suitable form thereafter.

7.3.3 Such continuing requirements therefore relate to activities or actions happening to a building element, not the building element in itself.

7.4 Continuing requirements imposed by Ministers

7.4.1 Section 2 of the Act allows the Scottish Ministers to impose continuing requirements on building owners in a different way. Here Ministers can include in the regulations certain matters that apply after the warrant and Completion Certificate process is complete. Further, the requirements may be imposed on existing buildings, whenever built.

7.4.2 The intent of this regulation is, for example, to implement certain terms of the European Directive on the energy performance of buildings. [The following statement depends on when/how the energy performance of buildings directive is implemented - Thus owners of buildings that are larger the 1000 square metres in area must continue to update and display notices providing information on the energy performance of the building when it is in use.]

7.4.3 This form of continuing requirement can only relate to a provision of the regulations which is designated in the regulations as one to which such requirements may apply.

7.5 Continuing requirement enforcement notice

7.5.1 The Local Authority for the geographical area in which a project is sited is responsible for the enforcement of the regulations. This applies irrespective of whoever carried out the verification role. In particular, the local authority has a role in enforcing continuing requirements, whether imposed by verifiers or by Scottish Ministers.

7.5.2 The local authority may serve a notice on the owner of a building requiring compliance (see section 26 of the Act for details). Where compliance is not achieved, the owner has committed an offence, and the local authority can carry out any necessary works, and recover costs from the owner.

7.6 Other offences and enforcement

7.6.1 The notices described above are designed to ensure work is done in accordance with the building warrant. There are other enforcement possibilities, relating to the other offences set out in the Act.

7.6.2 In relation to certificates of design, a verifier must accept certificates forming part of an application for warrant as conclusive of the facts to which they relate. If all other matters comply, a warrant must be granted. However, if a verifier considers that a certifier may have committed an offence under section 11(4) of the Act by issuing a false or misleading certificate, the verifier should report the matter to the procurator fiscal service.

7.6.3 Similarly, in relation to certificates of construction, a verifier must accept certificates forming part of a submitted Completion Certificate as conclusive of the facts to which they relate. If all other matters comply, a Completion Certificate must be accepted. However if, after accepting a certificate, a verifier becomes aware that a certifier may have committed an offence under section 19(4) of the Act by issuing a false or misleading certificate, the verifier should report the matter to the procurator fiscal service.

7.6.4 If a building is occupied without a Completion Certificate having been accepted, or without permission for temporary occupation having been granted (see section 21 of the Act) the Court may restrain or prevent the occupation or use.

7.6.5 For enforcement related to defective or dangerous buildings, see chapters 10 and 11 below respectively.

7.7 Consultation and limitations for historic buildings

7.7.1 For the purposes of enforcement under the Act, the following are designated as historic buildings:

• scheduled ancient monuments,
• listed buildings,
• buildings subject to preservation orders, and
• those buildings in conservation areas subject to control of demolition.

Ancient monuments are those included in the schedule of monuments compiled and maintained under section 1 of the Ancient Monuments and Archaeological Areas Act 1979.

Listed buildings are those included in a list of buildings of special architectural or historic interest compiled or approved under section 1 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, preservation orders are under section 3 of that Act and control of demolition is under section 66 of that Act.

7.7.2 Before serving notices on Historic buildings as defined in the Act there must be consultation with the Scottish Ministers (through Historic Scotland), the planning authority (where this is not the local authority) and anyone else the local authority consider necessary. Where the planning authority is within the same authority there should still be some properly recorded consultation.

7.7.3 The only qualification of this requirement is, in relation to a dangerous building notice or urgent work needed to remove a danger, that consultation is required ‘if reasonably practicable’. This is intended to cover problems requiring immediate action, and the relevant authorities should be notified subsequently of any such action.

7.7.4 There is also an important limitation on the notices. Except in an urgent case as described above, the effect of the notices on a person required to do work in relation to any of the enforcement notices is restricted to work that is not inconsistent with any provisions of the legislation designating the historic buildings.

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