 |
 |
| Publications |
| Home | Press | Publications | What We Do | Who We Are | Search | Site Map | Contacts | Links | ||||
|
|
|||
 Publications A to Z
|
Background
Local authorities administer building control in Scotland, enforcing regulations made by the Scottish Ministers subject to approval by the Scottish Parliament.
Building control applies to the construction, alteration, extension or demolition of a building or part of a building, or to any change of use which attracts additional or more onerous requirements under the regulations.
The essential purpose is to safeguard people in and around buildings. To this has been added the conservation of fuel and power used in buildings, and the provision of facilities for the disabled in and around buildings. It is a pre-emptive system, ensuring as far as practically possible that the proposed buildings will not contravene the regulations and that on completion the buildings do in fact comply.
The Scottish Ministers hope that users of the regulations and those affected by them, including members of the public, will not hesitate to make their views known where they feel the regulations are either inadequate or are too wide in their scope or too onerous in any respect. Suggestions for improving any aspect of building control will always be given careful consideration.
Building Standards (Scotland) Regulations
The building standards regulations are made by the Scottish Ministers under powers in section 3 of the Building (Scotland) Act 1959 as amended, (in particular by the Scotland Act 1998, which transferred the powers from the Secretary of State for Scotland). The regulations do not apply retrospectively to existing buildings unless there are exceptional circumstances (such as danger to the public), but do apply to parts of existing buildings that are altered or extended.
A number of separate supporting regulations set out the procedures, forms and related matters which regulate the operation of the building control system. Local authorities can advise on what is applicable in relation to any particular project.
Scottish Ministers, in framing building standards regulations, are required to consult the Building Standards Advisory Committee (see below) and such other bodies as appear to them to be representative of the interests concerned. Regulations are published in the form of Statutory Instruments, which are subject to the approval of the Scottish Parliament.
Building Standards Advisory Committee
This committee, established by statute, keeps a watching eye on the building control system and reports to Scottish Ministers on aspects that need attention because of developments in the industry or changes in the expectations of society. The committee must also be consulted on all proposed amendments to the legislation. The secretariat to the committee is provided by the Scottish Executive, which can be approached to put matters before the committee.
Compliance with the regulations
Regulation 9 stipulates that the requirements of the regulations can be satisfied only by compliance with the relevant standards. The relevant standards are set out in this document, the Technical Standards for compliance with the Building Standards (Scotland) Regulations 1990, as amended.
Without prejudice to any other way of meeting the standards, complying with the provisions that are deemed to satisfy the requirements of the regulations, as given in this document, constitutes compliance.
To satisfy the regulations therefore the design, materials and methods of construction must be at least to the standards set in this publication. The provisions deemed to satisfy the standards are provided for the convenience of designers only if they choose to adopt them. There is no obligation to do so, but if used properly deemed to satisfy solutions must be accepted by the local authority.
An important point to recognise is the full acceptance of solutions based on standards and technical specifications recognised in other Member States of the European Economic Area (EEA), or to the growing number of European standards, where these provide equivalent standards of protection or performance. (See Part A: Reference to published standards, and Part B: Fitness of Materials). These regulations must not contravene the Construction Products Directive by causing barriers to trade within the EEA.
Building warrants
All building work must comply with the standards prescribed by the regulations except the classes of building exempted by the definition of building or listed in schedule 1 (see Part A). It is an offence for anyone to carry out building works, other than those specifically exempted, without a warrant from the local authority. It is the responsibility of the building owner to apply for and obtain the warrant. Apart from the exempted classes of building described above certain fixtures, listed in schedule 2, may not require a warrant, although compliance with the standards is still required. The building control officers of the local authority will advise on what drawings, specifications and other information are required to enable them to check for compliance with the regulations. For very minor work only limited plans may be needed, but large projects require extensive information. A fee is payable at the time of application for a warrant based on the estimated cost of the building works.
The local authority is responsible for the enforcement of the regulations and in most cases difficulties or disagreements over interpretation are resolved by discussion with the local authority. There is, however, a right of appeal to the Sheriff Court in the event of refusal to grant warrant and certain other actions of the local authority.
The time required for checking may depend on the size or complexity of the project, and any adjustments required, so no time limit is set in Statute. Most authorities however operate to targets for responding, and report performance to the Accounts Commission which publishes annual reports.
A warrant is valid for three years from issue, but this period can be extended if a request is made within that period.
A warrant is required for the demolition of a building (sections 6 and 16 of the Act refer).
Inspection
During construction building control staff may inspect the works, and the local authority must be notified when building work begins and subsequently at specified stages. Tests (e.g. of drains) may be required to establish compliance with the regulations (section 18 of the Act refers).
Completion
Before the building may be occupied it is necessary to obtain from the local authority a certificate of completion. This provides formal confirmation that the building work has been carried out in accordance with the warrant and with the building standards regulations, so far as the local authority can ascertain from their inspection (section 9 of the Act refers).
Quite apart from the legal implications, failure to obtain warrants and completion certificates can have serious practical consequences, e.g. for householders seeking to sell their homes. Buyers’ solicitors and lending institutions often wish to see these documents in connection with property sales, mortgages etc. Where work has been carried out that does not comply with the regulations the local authority can require changes to be made to bring it up to standard. This can impose considerable additional expense on the owner.
Additional arrangements
The summary above outlines the arrangements and legal obligations that apply in most cases. There are additional arrangements that may be appropriate in particular circumstances.
Relaxations: Any set of rules for such a complex and evolving subject as building must incorporate a degree of elasticity to cope with exceptional circumstances. In such cases there are arrangements to permit relaxation from or dispensation of requirements in the regulations. The power to decide these cases has been devolved fully to local authorities, which can advise on how to apply for a relaxation (and on how to appeal if an applicant feels particularly aggrieved by a refusal or the conditions attached to a decision to relax). In the case of relaxations only, appeal is to the Scottish Executive, not the Sheriff Court.
Reasons for relaxation can include, for example, difficulties posed in alteration work. The key consideration is whether, in a particular case, it is unreasonable for specific requirements to apply. If a relaxation application concerns a departure from regulation 13 on means of escape from fire the local authority must consult the fire authority before issuing a decision (section 4 of the Act refers).
Class relaxations: Exceptionally, Scottish Ministers can issue class relaxation directions permitting the use of products or elements of buildings that do not comply with the published standards. Class relaxations characteristically relate to products or building elements or forms that incorporate new technical features not envisaged when the regulations were made, but which nevertheless embody adequate safeguards for public health and safety (section 4 of the Act refers).
Class warrants: The Act sets out a procedure for giving a class of building a warrant, which would apply in subsequent applications. This procedure has never been implemented as local authorities in Scotland have set up the Scottish Building Control Organisation to issue type approvals. Information is available from the Convention of Scottish Local Authorities.
Staged warrants: Local authorities are empowered to issue a warrant subject to agreement on later phases of work. This procedure, often known as a staged warrant, allows construction to begin before design is complete. The applicant choosing to build in this way will be required to show that any work to be commenced does comply, and that later phases comply before being permitted to proceed with them.
Limited warrants: There is provision for gaining a warrant for buildings to have a stated limited life not exceeding five years. The warrant is issued on condition that the building will be demolished before the end of the stated period unless the local authority grants an extension of the period. It will be apparent that this provision has significance only where the regulations accept lesser standards for a short life building (section 6(4) and (5) of the Act refers). Such standards might be resistance to moisture, say, which can be relaxed without increasing risks to the building users for the limited time involved.
Self-certification: This procedure has been adopted to allow chartered engineers to certify structural design work rather than submit detailed calculations (section 6AA of the Act refers). There are no plans at present to extend the use of self-certification.
Alterations and extensions
The application of the building standards regulations to alterations and extensions sometimes presents difficulties. The basic principle is that the regulations apply to the alteration or extension but not to the existing unaffected parts of the building even where these do not comply with present regulations. However the alteration or extension must not directly cause the existing part of the building to fail to conform, or to fail to conform to a greater degree (for example if an extension is built over a window needed to provide light, ventilation or escape). In those instances a warrant may be refused unless the existing building is brought up to the standard previously attained (sections 6(2)(a), 6(8)(c) and 29(2) of the Act refer).
Change of use
Change of use of a building or part of a building can bring into force all relevant regulations in the case of a building previously exempted, or additional or more onerous requirements in the case of a building already subject to the regulations. For example, a house changed into a nursing home would attract more onerous means of escape requirements. Such changes of use require a warrant even if no building work is proposed. Or again, if a house is split into flats the floor will become a separating floor and more fire resistance is required.
The key is whether a more onerous requirement applies to the new use of the building or any part or component of the building. It may relate to only one regulation or many, or one part of a building and nothing else (for example the use of a gas flue for a solid fuel appliance).
A building does not necessarily need to change from one purpose group to another to attract more onerous requirements. The local authority can advise on particular cases (section 6(2)(b) of the Act refers).
Change of use for building control purposes must be carefully distinguished from change of use for planning purposes.
Enforcement
Local authorities have powers to enforce the regulations where buildings have been constructed without a warrant or in contravention of the regulations or conditions of a warrant. Regardless of whether or not work requiring warrant is proposed, they can also require an existing building to conform to certain regulations if this should be necessary to safeguard the occupants or the public generally. In such cases a notice is served on the owner of the building stating the operations required. If the owner fails to react within a defined period the authority may order him to carry out the work. In the event of failure to comply with the order within a specified period the owner is guilty of an offence and the local authority may then carry out the work and recover the cost from the owner as a debt (sections 10 and 11 of the Act refer).
Dangerous buildings
If the local authority considers that a building is dangerous it can require immediate evacuation and require, or itself take, any action (including demolition) necessary to protect the public and adjacent property. The authority can then serve on the owner a notice requiring remedial action or demolition within a stated period and, if no action is taken, serve an enforcement order. If this is not complied with the authority can itself carry out the repair or demolition and then recover its expenses from the owner (sections 13, 14 and 15 of the Act refer).
The Building Control Forum
The Scottish Executive and the Convention of Scottish Local Authorities (COSLA) meet regularly to promote common interpretation and administration of the building standards regulations. This Forum brings together senior local authority and central government officials about 3 times a year to resolve difficulties in the operation of the building control system, so far as is possible without changing legislation. It also provides an opportunity for consideration of representations from industry, commerce and the building professions on problems of general concern. Anyone wishing to make such representations should approach either the Scottish Executive or COSLA.
The minutes of the meetings and occasional information papers agreed by the Forum are distributed to all local authorities, providing a direct channel of communication to deal with problems arising on the operation of the system.
The information contained on this WWW site is Crown Copyright but may be reproduced without formal permission or charge for personal or in-house use. Privacy and Content Disclaimer.
For general enquiries about this web site email ceu@scotland.gov.uk or fill out our online questionnaire.
