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

10 Dangerous Buildings

10.1 Introduction

10.1.1 Building owners are responsible for their buildings when they fall into a dangerous condition. The powers given to local authorities by the Act do not diminish this responsibility, but are merely a ‘safety net’ that must be used to protect the public when it appears to a local authority that, for whatever reason, a building owner has failed in the duty to fulfil this responsibility.

10.1.2 The powers available to the local authority are wide-ranging and can be applied to any structure that meets the definition of building within the Act. Thus, for example, these powers can be used on a building that has not been subject to the building regulations or the building warrant process (schedules 1 and 3 of the Building (Scotland) Regulations 2004) if that building has fallen into a dangerous state.

10.2 Duty to act

10.2.1 Should a local authority become aware of a building that constitutes a danger to persons in or about the building, or to the public generally, or to adjacent buildings or places, then it has a duty to act (see section 29 of the Act).

10.2.2 The local authority must carry out such work (including if necessary demolition) as it considers necessary to prevent access to the dangerous building and to any adjacent parts of any road or public place which appear to be dangerous because of the state of the building. Any other work considered necessary for the protection of the public and persons or property in places adjacent to the dangerous building must also be carried out. This covers such matters as installing any necessary temporary shoring. Reasonable expenses may be recovered from the owner(s).

10.2.3 Where the local authority considers that other urgent action is needed to reduce or remove the danger it may, after giving the owner such notice (if any) as the circumstances permit, carry out the necessary work, and recover the costs from the owner. In most cases however the local authority will serve on the owner a notice to do the work (see paragraphs at 10.3 to 10.5 below). Satisfactory management of dangerous building incidents by local authorities is essentially the result of appropriate risk assessment. Each dangerous building case should be dealt with on its own merits, as the local authority considers necessary.

10.2.4 There are a considerable number of factors which can influence the approach to be taken:

• the nature and/or severity of the danger (structural decay or damage, fire damage, impact damage, missing building safety features, loose parts of building elements or building fixtures, sudden subsidence, etc.)
• the physical proportions and nature of the building (low-rise, medium-rise, high-rise, spire or tower, viaduct, etc.)
• the geographical location (city centre, rural, remote, etc.)
• the site location (internal only, internal but could affect whole building, external affecting curtilage of building, external affecting a public area, ease of accessibility to do the emergency work etc.)
• the extent of the danger (several affected buildings, only one building or part of building affected, several parts of one building element, or just one part etc.)
• the persons at risk from the danger (general public passing by, building occupiers, unauthorised persons frequenting the building etc.)
• the time of year and/or day (school holidays, public holidays, night time, rush hour etc.)
• the building owner (finding the owner, the number of owners, the owner’s willingness to recognise danger and resolve matters, the financial/construction resources available to the owner etc.)
• the building occupier (the occupier’s willingness to recognise danger, need to temporarily re-house occupiers, disruption to occupier’s business etc.)
• the attendance of other statutory bodies at, or permanent surveillance of, the dangerous building (police, fire service, security guards, etc.)
• the availability of emergency contractors (demand for other emergency repairs, public holidays etc.)
• the local weather forecast (high winds, flooding, period of calm etc.)

This list is provided to identify the main issues which surround dangerous buildings, but is not to be considered as being exhaustive. For example, consideration of the historic status of the building is needed (see paragraph 10.3.1 below)

10.2.5 It is expected that local authorities will respond immediately to a report of a dangerous building, but they will have regard to the information that they are presented with at the time of the report. If a local authority considers that immediate access/entry to a dangerous building is essential due to the severity of the report received, or after risk assessment that measures are required, no prior notice need be given to the owner or occupier. If access/entry is refused or the property is vacant an authority may seek a warrant to enter the premises from a sheriff or justice of the peace. The authority when leaving must secure the premises against unauthorised access, to the same degree of security as prior to them gaining access. (It would also be an offence for any person who has gained entry to disclose or make use of any commercially confidential information).

10.3 Establishing the danger and taking action

10.3.1 If the building is of an historic nature (this information can usually be obtained from the planning section of the local authority) consultation must take place with:

• the Scottish Ministers (Historic Scotland should be informed)
• the planning authority (where the planning authority is not the local authority, such as in a national park)
• and such other persons as the local authority see fit

before serving a notice or carrying out work. There is a single qualification of this need to consult.

10.3.2 When serving a dangerous building notice or carrying out urgent work under section 29(3) of the Act, the consultation is required only if reasonably practicable. It is however still good practice to limit the action taken in relation to a historic building to the minimum needed to protect the public until the proper consultations have taken place.

10.3.3 In many instances the danger presented by a building is easily established. Depending on the degree of risk and the simplicity of remedial work it may be possible for the local authority to negotiate a solution with the building owner without taking formal action. For the local authority to consider such an arrangement it is imperative the owner agrees at once, and confirms as appropriate to the local authority, that they will immediately arrange to undertake the measures required. The advantage is an owner should be able to arrange either temporary or permanent solutions in the time it would take an authority to effect only emergency work, using the normal notice procedures etc. However an owner that fails to achieve the negotiated solution can expect the local authority to take action swiftly.

10.3.4 In some cases the action of the local authority may involve the serving of a dangerous building notice (see paragraphs at 10.4 below) and no immediate action may be necessary e.g. where the building is unoccupied and adequately isolated from the public. In most instances however some emergency work will be needed to prevent access to the building (e.g. security fencing) or to carry out temporary work (e.g. shoring) or permanent work (e.g. repairs) to reduce/remove the danger. In some cases partial or total demolition work may be done by an authority where this is the only appropriate solution. Reasonable expenses incurred for any such work may be recovered from the building owner(s).

10.3.5 In some instances the degree of risk cannot be established except by instigating further exploratory work on the building either using the resources of the local authority or subcontracting the work to a specialist. Enabling equipment or work will sometimes be necessary and again reasonable expenses incurred for this may be recovered from the building owner(s). Note that preliminary/investigative work can incur considerable expense where for example scaffolding or a mobile access platform is hired. Where possible such enabling work should be used to remove the danger, whether completely, partially or temporarily, as considered appropriate by the local authority.

10.3.6 Where there is to be a delay in establishing the extent of the danger, it is appropriate for the authority to undertake work to mitigate possible effects, for example by erecting temporary barriers to restrict access. Again reasonable expenses may be recovered for such emergency work.

10.3.7 Where emergency work is undertaken by a local authority that permanently alters the building or involves partial or total demolition such work does not need a building warrant. When undertaken by an owner, a warrant must be obtained unless a dangerous building notice has been served. A notice can therefore be an advantage in certain circumstances e.g. where a home owner has lost their home through no fault of their own, say in a gas explosion. In all cases however the work must be recorded in the Building Standards Register held by the local authority. A local authority must also register a Completion Certificate when work is complete, even though a warrant was not required.

10.3.8 A notice is not required if the emergency work completely removes the danger with a long term solution. If a part of the building is still dangerous a notice must be served. If the building is merely defective after the emergency work, however, a defective building notice may be sufficient (see chapter 11 below).

10.4 Dangerous building notices

10.4.1 A notice based on the model form should be used. In cases where there are multiple owners of a building each owner or set of joint owners must receive a notice. The notice must contain at least the following:

• the name and address of the owner
• the address of the dangerous building
• a list of any co-owners and their addresses
• the commencement date for remedial work (appropriate timescale set by authority)
• the completion date for remedial work (appropriate timescale set by authority)
• the dangerous aspects of the building
• the work necessary to comply with the notice, including any protective works and specialist supervision required, and offering options where possible e.g. repair or demolish
• historic building category (as appropriate)
• notes on right of appeal

10.4.2 Optional information might be:

• guidance notes for owners receiving a notice, including procedures for obtaining a building warrant if other work is to be done at the same time as the remedial work
• guidance on the follow-up procedures that will be adopted by the local authority
• location plan of the building

10.4.3 Copy notices must be served on the occupiers of the building if they are not the owner(s). The local authority must also serve a copy notice on any other person appearing to have an interest in the building. Procedures for serving notices can be found in the Local Government (Scotland) Act 1973. Where the local authority is the owner or a co-owner of a dangerous building the notice should be served on the chief executive of the authority, as the representative of the owner.

10.4.4 An owner may appeal to the sheriff within 21 days of the date of the notice and this delays the effect of the notice. There is no further right of appeal against the decision of the sheriff.

10.4.5 If circumstances change after a notice has been served, for example to a situation that requires urgent action, a notice may be withdrawn, or any aspect waived or relaxed, allowing the authority to take urgent action. Notice of such a change is required before action only if reasonably practicable.

10.4.6 Although no warrant is required for work specified in the notice it must be recognised that any additional work may require a warrant. On completion, the work and any Completion Certificate required must be recorded in the Building Standards Register.

Notes:

(1) An owner may, within 21 days of notice, appeal to the sheriff. Notice has no effect until 21 days is past or any appeal is withdrawn or determined.
(2) Notice has effect only so far as it is not inconsistent with historic buildings legislation.

10.5 Failure to comply with a dangerous building notice

10.5.1 Where an owner has not fulfilled the requirements of a notice, the owner is guilty of an offence. In these circumstances the local authority can carry out or complete the necessary work and recover from the owner any expenses reasonably incurred. Most cases should, however, be dealt with to avoid this outcome.

10.5.2 There may be a variety of reasons why failure to comply is likely, particularly where a number of owners are involved. In most cases therefore prior notification should be given of the intention to issue a notice. The owners should be given the opportunity to show why the notice might not be reasonable, or of how they intend to handle the situation. If representations are received, the owners should be invited in writing to a hearing. Such a hearing may be arranged as the local authority see fit, and may involve elected members as well as building standards officers. Anyone with an interest in the dangerous building or adjacent buildings, or that are associates of the building owners, occupiers or other interested persons, must declare that interest.

10.5.3 The hearing should be an opportunity to get the owner/mutual owners together to impress upon them both the reasons why action will been taken and that looking after the property is their (joint) responsibility. At the hearing a decision is made e.g. to give the owner(s) more time to do the work, or the local authority decides to issue the notice. The authority may at any time in the proceedings:

• withdraw the intention to serve the notice
• waive or relax any requirement of the notice
• substitute a later date (for either date in the notice, being the dates by which the work must be started and completed.

If a notice is not served, the local authority has the power to issue a future notice. After a hearing, written notification of the decision must be given to the owner(s), occupier(s) and any affected proprietors.

10.5.4 If the notice when served is not complied with, and the local authority decide to carry out the work, then a tender document should be prepared and a minimum of three prices obtained (perhaps only two if the work is very specialised e.g. involving a steeplejack). The building owner(s) should be informed of the prices, and which is to be accepted, and invited to give written comment within a given period. Owners should also be informed of the date when the contractor will start the work and any matters that require to be addressed by the owners prior to the start e.g. removal of fittings etc. to allow work to proceed unhindered.

10.5.5 Where the owner of a dangerous building does not occupy the property, the Act (section 40) gives the right to enter the property for the purpose of compliance with the terms of the notice. This right extends to any surrounding land held in connection with the building. Reasonable notice must be given before exercising this right of entry. Where access is needed to adjoining land owned by others, it will be necessary to negotiate legally such access. (This does not affect a local authority’s right to enter any property to carry out emergency work).

10.6 Evacuation of dangerous buildings (including notice to remove)

10.6.1 There may be circumstances where it is not possible for the owner or the local authority to carry out emergency works sufficient to enable the occupants of a dangerous building or those of adjacent buildings to remain in occupation. In some instances the nature of the work e.g. demolition or stabilising using tied-through scaffolding, may prevent the occupiers from remaining in the building. Where this occurs the local authority must require the occupants to remove immediately, and can apply to the sheriff for a warrant for ejection if the occupants refuse to remove, or re-enter the building. (see paragraphs 10.6.3 to 7 below).

10.6.2 The requirement to remove should be in writing, and must state the reason for the requirement and the time by when the occupants must remove from the building. This applies in relation to work arising from a dangerous building notice as well as emergency work. A copy of the notice should be sent to the owner of the building where the owner is not also the occupier.

10.6.3 If an occupant fails to vacate a dangerous building or an adjacent building when required by the local authority a warrant may be sought from the sheriff for the ejection of the occupant. If the occupant is required to move immediately the warrant can be applied for at any time. If however the notice to remove specifies a time period, the warrant can only be applied for when that time period expires. The application to the sheriff must include a certificate confirming that the occupant will be exposed to danger or has the potential to be exposed to danger as a result of the dangerous building or the work proposed to the dangerous building (including demolition). The sheriff may require the service of a notice in terms of schedule 5(4) of the Act, but this is in addition to any notice already served by a local authority in terms of section 42. A copy should be sent to the sheriff.

10.6.4 Where a local authority intends to carry out work to draw a dangerous buildings notice to a conclusion and they consider that the occupant may be endangered by such work, the sheriff may grant a warrant of ejection. In any other case the sheriff must grant a warrant for the ejection of the occupier within seven days of the application, or if a notice is required under schedule 5(4), within seven days of the date of the notice. There is no right of appeal against the sheriff’s decision.

10.6.5 Paragraph 8 of schedule 5 advises the sheriff that the information contained in the certificate accompanying the application for a warrant to eject is sufficient evidence of the facts in the certificate.

10.6.6 Paragraphs 9 to 11 of schedule 5 give rights to tenants in relation to maintaining their tenancy agreement and non-payment of rent during the time that they have not been able to occupy the building.

10.6.7 Under section 43, it is an offence for a person who has been evacuated/ejected from a building in accordance with section 42 and/or schedule 5 to thereafter occupy the building. However when the need for occupants to vacate buildings has passed, the local authority must give notice, in writing, that occupation may resume.

10.7 Recovery of costs

10.7.1 A local authority may recover from the owner of a dangerous building any expenses reasonably incurred in carrying out work in relation to the building, except as explained in paragraphs 10.7.2 and 3 below. The normal methods of debt recovery apply, except as explained in paragraphs 10.7.4 and 5 below. (Note that the 2003 Act makes no provision for charging orders).

10.7.2 Where a demand for payment is made by a local authority in relation to work on a dangerous building, section 44 of the Act may limit the amount payable. It depends on both the interest that the person has in the building and the resources available, but is limited to trustees, liquidators etc. as listed in section 44(2)(a).

10.7.3 Section 44 also advises that summary application can be made to the sheriff where a person considers that costs incurred or to be incurred by a dangerous building notice should be borne to any degree by another person with an interest in the building. The sheriff may make an order and there is no right of appeal against the sheriff’s decision.

10.7.4 A local authority may use section 45 of the Act if it has incurred expense but cannot find the owner to recover the costs. The local authority can seek authorisation from the Scottish Ministers via the Agency to compulsorily purchase the dangerous building and its site. The costs not recovered may be offset against the compensation that would normally be payable as a result of compulsory purchase.

10.7.5 Where a dangerous building is demolished by a local authority, section 46 of the Act permits the authority to sell the materials arising from the demolition. The local authority may offset the proceeds of the sale against the sum to be recovered. Any surplus must be accounted for to the owner or any other person having an interest in the building.

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