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

Appendix A: Legislative framework for certification

The framework for the certification system is established in four sections of the Building (Scotland) Act 2003.

1.1 Introduction of certification, certification schemes: Section 7 of the Act enables the certification of design and construction as complying with the Building (Scotland) Regulations.

PART 2 APPROVAL OF CONSTRUCTION WORK ETC.

7 Verifiers and certifiers

(1) For the purposes of this Act the Scottish Ministers may appoint persons (whether individuals or bodies corporate or unincorporate and including public bodies and office-holders) as-

(a) verifiers,

(b) approved certifiers of design,

(c) approved certifiers of construction.

(2) The Scottish Ministers may approve schemes in accordance with which persons (whether individuals or bodies corporate or unincorporate) who are for the time being members of the schemes are entitled to exercise for the purposes of this Act the functions of (either or both)-

(a) an approved certifier of design,

(b) an approved certifier of construction,

and references in this Act to approved certifiers of design or approved certifiers of construction include (unless the context requires otherwise) any persons who are by virtue of their membership of any such scheme entitled to exercise the functions of such certifiers.

(3) The Scottish Ministers may-
(a) approve any such scheme subject to such limitations as they may impose, which may be framed by reference to area, description of building, cost of building or building work or any other factor whatsoever,

(b) withdraw any approval given under subsection (2).

1.2 Certification and building warrant applications: Section 11 of the Act establishes the role of applicants and the duties of verifiers and certifiers with regard to building warrant applications.

PART 2 APPROVAL OF CONSTRUCTION WORK ETC.

11 Building warrants: certification of design

(1) On making an application under section 9 for a building warrant or for amendment of a warrant, the applicant may submit to the verifier a certificate issued by an approved certifier of design certifying (either or both)-

(a) that the design of the building, or of such part of it as is specified in the certificate, complies with building regulations,

(b) in relation to work for construction or demolition or for provision of services, fittings or equipment, that the proposed method of working, or any part of it, complies with building regulations.

(2) In subsection (1), "design" includes the specification of the material to be used.

(3) In determining the application, the verifier must accept the certificate as conclusive of the facts to which it relates.

(4) Any approved certifier of design who-

(a) issues a certificate under subsection (1) containing a statement which the certifier knows to be false or misleading in a material particular, or

(b) recklessly issues a certificate under subsection (1) which is false or misleading in a material particular,

is guilty of an offence.

(5) In this section, "certificate" means a certificate which the approved certifier of design is authorised to issue-

(a) in the case of such a certifier appointed under section 7(1), by the terms of the certifier's appointment,

(b) in the case of a person who is such a certifier by virtue of membership of a scheme approved under section 7(2), by the scheme as approved.

1.3 Certification and completion certificates: Section 19 of the Act establishes the role of applicants and the duties of verifiers and certifiers with regard to completion certificates.

PART 2 APPROVAL OF CONSTRUCTION WORK ETC.

19 Completion certificates: certification of construction

(1) On submitting a completion certificate to a verifier under this Act, the person submitting the completion certificate may submit to the verifier a certificate issued by an approved certifier of construction certifying in relation to the building in question that such construction as is specified in the certificate complies with building regulations.

(2) In subsection (1), the reference to building regulations is-

(a) in relation to a completion certificate submitted under subsection (1) of section 17, to those regulations as they applied for the purposes of the building warrant,

 (b) in relation to a completion certificate submitted under subsection (4) of that section, to those regulations as they have effect on the date on which the completion certificate is submitted.

(3) In determining whether or not to accept the completion certificate, the verifier must accept the certificate of the approved certifier of construction as conclusive of the facts to which it relates.

(4) Any approved certifier of construction who-

(a) issues a certificate under subsection (1) containing a statement which the certifier knows to be false or misleading in a material particular, or

(b) recklessly issues a certificate under subsection (1) which is false or misleading in a material particular,

is guilty of an offence.

(5) In this section-
"certificate", in relation to construction, means a certificate which the approved certifier of construction is authorised to issue-

(a) in the case of such a certifier appointed under section 7(1), by the terms of the certifier's appointment,

(b) in the case of a person who is such a certifier by virtue of membership of a scheme approved under section 7(2), by the scheme as approved,

"construction" includes any building or work in relation to a building and includes services, equipment and fittings provided in or in connection with a building.

1.4 Appointments, relationships between verifiers and certifiers: Schedule 2 of the Act gives requirements for the appointment of verifiers and certifiers, and for the relationships between them.

Schedule 2 Verifiers and certifiers

1 A verifier or certifier is appointed under section 7(1) for such period, and holds the appointment on such terms, as the appointment may specify.

2. An appointment may be made subject to such limitations as the Scottish Ministers may impose, which may be framed by reference to area, description of building, cost of building or building work or any other factor whatsoever.

3 Despite paragraph 1, an appointment may be varied or terminated on such grounds as may be specified in procedure regulations.

4 A person who is a certifier by virtue of membership of a scheme approved under section 7(2) is entitled to exercise the functions of a certifier subject to-

(a) such limitations as are imposed in relation to the scheme under section 7(3), and

(b) any limitations contained in the scheme.

5 When the appointment of a verifier (the "former verifier") terminates, for whatever reason, the Scottish Ministers must direct another verifier (the "successor verifier") to deal with-

(a) any application made to the former verifier under section 9 for a building warrant or an amendment to a building warrant, so far as undetermined at the time when the appointment terminated,

(b) any completion certificate submitted to the former verifier and not accepted or rejected under section 18 at the time when the appointment terminated, and

(c) any completion certificate submitted after the time when the appointment terminated and relating to work or a conversion in respect of which a building warrant was granted by the former verifier;

and from the date of the direction references in this Act or subordinate legislation made under it to the verifier are to be read as references to the successor verifier.

6 A verifier is not entitled to exercise any functions as such under this Act in relation to any matter in respect of which it has, as an approved certifier of design or an approved certifier of construction, issued a certificate under section 11(1) or, as the case may be, 19(1).

7 An approved certifier of design is not entitled to issue a certificate under section 11(1) in relation to any matter in respect of which it has exercised or is exercising any function as a verifier under this Act.

8 An approved certifier of construction is not entitled to issue a certificate under section 19(1) in relation to any matter in respect of which it has exercised or is exercising any function as a verifier under this Act.

9 A verifier is not entitled to exercise any function as such under this Act in relation to a building in which it has an interest unless the Scottish Ministers authorise it to do so by a direction under this paragraph.

10 Such a direction may be given to a particular verifier or to verifiers of a particular description and may be given in respect of all the functions of the verifiers to which it applies or such descriptions of those functions (determined by reference to any criteria whatsoever) as the direction may specify.

11 For the purposes of paragraph 9, a verifier has an interest in a building if it is an owner, tenant or occupier of the building or if it has such other interest in or in connection with the building as may be specified in procedure regulations.

12 Such regulations may specify different such interests in relation to different verifiers or different descriptions of verifier.

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