Building regulations - compliance and enforcement: consultation

Part 1: Creation Of A New Compliance Plan Approach/Process To Demonstrate Compliance With The Building Regulations

Overview of the existing building standards system

The building standards system in Scotland operates under the Building (Scotland) Act 2003, introduced in 2005 and is a pre-emptive system, carried over from the previous building standards system administered under the Building (Scotland) Acts of 1959 and 1970. This means that before any work that requires a building warrant can start, the building warrant must be submitted to the relevant local authority verifier for assessment and approval against the Mandatory Functional Standards. Verifiers are appointed by Scottish Ministers to administer the building standards system in Scotland. The 32 local authorities have been appointed as verifiers to deliver the building standards service in their own geographical areas. Their role is to protect the public interest by providing an independent check of applications for building warrants. This includes checking the design phase before granting the warrant and checking during the construction phase before accepting a completion certificate is accepted prior to new buildings being occupied.

To comply with the functional mandatory standards, Scottish Ministers publish national guidance through the Building Standards Division, the principal document being the Technical Handbooks, of which there is one for domestic buildings and one for non-domestic buildings. These provide details on how the mandatory standards can be achieved. There is no requirement to follow the published guidance as it offers only one possible way to comply with the mandatory functional standards. However, it is the most common way of demonstrating compliance as following the guidance can be relied on in any legal dispute as 'tending to negate liability' for an alleged contravention of the building regulations.

Only once satisfied that the proposals meet the requirement of the standards, the verifier will issue an approved building warrant signalling that works can now legally proceed on-site. Along with the approved building warrant, which includes the stamped and approved drawings, the verifier creates and issues a Construction Compliance and Notification Plan (CCNP) in line with a nationally adopted risk assessment methodology contained in the Verification During Construction Handbooks, produced by Local Authority Building Standards Scotland (LABSS) and the Building Standards Division.

The current CCNP details the construction stages that the verifier requires evidence of compliance with the standards. The CCNP sets out the appropriate methods of providing the evidence. This is generally by way of on-site inspections by the verifier, but may also include digital evidence, testing records, Certification of Construction (as defined under the Act) and other forms of certification as agreed with the verifier. Links to the Verification During Construction Handbooks, which provide guidance to verifiers on the drafting of CCNPs can be found on the Scottish Government website.

At this point, once the building warrant has been approved, it is the legal responsibility of the 'Relevant Person' (normally the building owner or developer) to undertake works on site in accordance with the approved building warrant and more generally the building regulations.

The current system provides a statutory obligation for the 'Applicant' to notify the LA verifier of their intention to commence work on site. The 'Model Form J - Notice Regarding Start of Work', is sent to the 'Applicant' with the approved building warrant and associated CCNP.

The final process involves the Relevant Person, or their duly authorised agent, submitting the completion certificate submission (CC) application to the verifier with a declaration that all works have been carried out in accordance with the approved building warrant and the building regulations. However, at present there is no requirement to demonstrate how the RP or duly authorised agent has ensured that works have been carried out in accordance with the building warrant and building regulations. The CC submission process also includes 'reasonable inquiry' by the verifier (including the CCNP inspections and other evidence) that the work has been carried out in accordance with the building regulations and if satisfied, a notice of acceptance of completion certificate is issued. It is an offence to occupy a new building, a conversion or an extension unless the relevant completion certificate has been accepted. It is, however, possible to obtain permission for temporary occupation or use but this will be limited for a specified period of time.

CCNPs were introduced in 2012 following the first compliance and enforcement public consultation in 2008. The Scottish Government undertook to review the building standards system three years after the Act came into force on 1 May 2005. The outcome was a review of process and procedures and the introduction of the Performance Framework in 2012, under which CCNPs are Key Performance Outcome 2 (KPO2). The purpose of the CCNP being to provide developers and verifiers with a clear view of when verifier inspections should take place using a risk based approach to inspections to enable verifiers to maximise their effectiveness in deploying their resources for the monitoring of building work. However, it was the view of the Compliance and Enforcement Panel that there was a need for a more robust approach to compliance planning and documented evidence of compliance.

2018 Compliance and Enforcement review panel report findings

The Compliance and Enforcement review panel report finding confirmed:

"It is clearly the legal responsibility for the building owner or developer to comply with the Building Regulations and it should be expected of them to have appropriately expert inspection during the course of the construction. However, as has unfortunately been shown, it is insufficient for Building Standards services to rely on the signing of a completion certificate by the owner / developer as confirmation of compliance. Appointed verifiers must act in the public interest by undertaking 'reasonable inquiry' through a combination of undertaking sufficient inspections and requiring proof of independent certification of elements of the construction so as to reasonably ensure that buildings comply with the Building Standards."

"The significant resource applied to the approval of design drawings and specifications is rendered superfluous if the building is not built in accordance with the approved documents thereby undermining the fundamental purpose of the regulations to ensure safe efficient functional buildings."

"There has been an increased adoption, particularly by public sector bodies, of procurement methods in which the design team are employed by contractors and which enables contractors to determine the nature and level of involvement or otherwise of the qualified design professionals in the inspection and checking of the compliance of those contractors' work on-site. Perhaps not surprisingly this element of service, which used to be a standard part of a design team's role, is frequently drastically reduced or even not required at all by employing contractors."

"Such appointments of design teams frequently contain confidentiality clauses whereby the professional design team are prevented from conveying concerns to the actual client for the project as to defective construction quality or changes from the approved design that they have observed and reported to the contractor. These arrangements have resulted in the situation where there is often limited independent professional oversight by the actual designers of the buildings of the detailed construction of projects and their compliance with Building Standards."

"Evidence from several recent inquiries indicate that currently it would be inappropriate to assume that contractors' quality assurance processes and self-certification can be fully relied on or alone can provide the necessary assurance as to compliance with the regulations or with the approved warrant drawings. The failure by some contractors to address defective construction can arise from the natural conflicts of interest for contractors in condemning aspects of their own construction work, as to do so may lead to additional costs of both the necessary remedial work and of any resultant delay to completion for the contractor involved."

"The combination of these factors has contributed to a situation in which public confidence in the quality and safety of our buildings has been severely dented. It was simply a matter of fortuitous luck and timing that the collapse of external walls at five schools across Scotland in the last few years, (four largely unreported collapses preceded the collapse at Oxgangs School), did not lead to multiple fatalities or major injuries to school children."

"Such regular failures within our Construction Industry must not be allowed to continue and while the core responsibility mostly lies with Industry, and to a lesser but still important degree with its clients. Government has a responsibility to ensure that weaknesses in the current implementation of the Building Standards system in Scotland in relation to failures to enforce procedural and site compliance are properly addressed."

In relation to enforcement, the review panel's discussions focused more upon compliance than enforcement reflecting the objective of improving compliance and thus reducing the need for enforcement activity. However, there was a wide agreement that the current approach to enforcement required strengthening with the need for local authorities to take more effective action in situations where non-compliance is identified. In relation to enforcement, the review panel report noted:

"The review panel on Compliance and Enforcement in Scotland concluded that the Scottish system is not broken but that evidence clearly shows there is a need to strengthen compliance both in relation to statutory procedural requirements and in addressing non-compliant work on site. It also concluded that the approach to enforcement where non-compliance has been observed, as currently practiced by verifiers, does not appear to be effective and that enforcement needs to be more strongly implemented by local authorities."

"Where additional inspections are required by the verifier as a result of initial inspections and compliance issues, additional fees for more in-depth investigations should be levied against the project. Detection of fraudulently produced evidence or certification should result in severe fines and enforcement of full compliance."

"The level of financial penalties that can currently be levied is insufficient to incentivise those contractors undertaking major projects, who may not comply fully with the regulations, to desist from doing so. The contractual penalties for late completion together with the cost of any remedial work required to address non-compliance may frequently considerably exceed these penalties. It is recommended that the level of penalties be reviewed so as to act as a true disincentive of failure to comply with both statutory procedures and standards."

The full Compliance and Enforcement review panel report ^[2].

A strengthened approach to compliance with the building regulations

The review panel report proposed that the CCNP process could be further developed into a new strengthened 'Compliance Plan' approach with the Compliance Plan being created by the applicant/developer for discussion and approval by the verifier. It was suggested that more robust Compliance Plans should take into account the following:

• the projected programme for the project
• the level of detailed information that is required to be submitted with the warrant application
• the form of procurement to be used
• the extent and nature of the client's technical representatives
• the experience and expertise of the contractor if known
• any proposed staging of warrants
• the higher risks elements of the building
• the documented evidence that the verifiers will require to be produced by the developer during construction, (suggested term Construction Compliance Evidence Documentation (CCED)), and
• the nature, frequency and specific stages of planned visits by building inspectors to the site and notification requirements.

At present the CCNP is created using national guidance (Verification During Construction Guidance) developed by Local Authority Building Standards Scotland (LABSS) and BSD. The CCNP is issued by the verifier with the approved building warrant. The proposed Compliance Plan, as suggested, would change this process and instead would require the Compliance Plan Manager, the designer and potentially the contractor (where appropriate, as contractors may not always be appointed at this early stage) to develop the Compliance Plan. The Compliance Plan would then be submitted to the verifier for agreement and issue with the building warrant.

The review panel report stated:

"It must be made clear that it is the legal responsibility of clients for all buildings that will be occupied, used, worked in or visited by members of the public to ensure that these buildings are compliant with the regulations. This responsibility should include a requirement on the client and appointed agents to the client to provide Building Standards services with the necessary evidence to demonstrate compliance."

"For that evidence to be relied upon by Building Standards services, it should be required to be produced by appropriately qualified professionals with indemnity insurance cover. The review panel considered that clarification and strengthening of the roles and responsibilities of clients and developers in this regard was an essential element in improving compliance."

At present applicants/contractors do not always inform verifiers when construction projects reach the inspection stages identified within the CCNP. This means verifiers are not always provided with the opportunity to inspect works at the critical stages and critically before elements of the construction are covered up. Making such notification mandatory in line with the findings of the previous consultation and requiring the CPM, designer, and contractor to develop and submit the new Compliance Plan instead of the verifier will make the process of compliance, and appropriate compliance inspection stages, more visible and better understood as requirements of the building standards system by those persons responsible for ensuring compliance, namely the Relevant Person (normally the building owner or developer).

As the current system of notification (CCNP) for all verification inspection stages is not mandatory, overall there are significant numbers of identified verification inspections not achieved. In this respect, the rigour provided by the new Compliance Plan process may for many verifiers increase or indeed significantly increase inspection workload beyond current activity even if, as is planned, the inspection notification stages remain essentially as currently required within the Verification During Construction Handbook.

Research and trialling on a live project is planned to identify the increased workload that will result from mandatory notifications and administering the Compliance Plan procedures so that verifiers can anticipate and plan ahead for this increased compliance workload.

The review panel also raised issues with the fact that under the current Scottish system there is no requirement for the Relevant Person (RP) signing the completion certificate, to have any particular competence, training or qualification in construction, irrespective of the size, complexity or height of the building that he or she is signing as compliant.

The Compliance and Enforcement review panel noted:

"This has meant that the completion certificate process is often not treated by those signing it with the level of diligence implied in the legislation. Without any requirement for specific knowledge on the part of the person signing the certificate, this process cannot provide the necessary level of assurance to confirm the compliance of all work on site, the majority of which will not have the benefit of having been inspected by Building Standards services."

The panel felt that consideration should be given to the completion certificate being assigned to those appropriately qualified. This consultation addresses this point and in the case of HRBs the CPM identifies that it could be a member of the design team or an appropriately qualified employer's agent or other independent appointee that is appointed to the role.

However, even with some form of enhanced oversight in place, the panels view was that it should remain the responsibility of verifiers to issue acceptances of completion. This gives the process the appropriate importance, authority and independence from commercial interests and allows the appropriate site inspections and audits of the evidence submitted to them by certifiers of compliance to be carried out.

Based on the views of the Compliance and Enforcement review panel, the proposal is that a CPM be appointed on all HRB projects. On HRBs only the RP or the CPM (a suitably qualified construction professional) acting on behalf of the RP, could submit the completion certificate submission.

The Building Standards Futures Board

A public consultation 'Building Standards Compliance and Fire Safety – A Consultation on Making Scotland's Buildings Safer for People' was carried out between July and September 2018. The responses were supportive of change to strengthen current building standards guidance to improve building quality, compliance and enforcement. Eighty two percent of respondents agreed that a 'Compliance Plan' should be provided to demonstrate compliance with the building regulations from concept to completion.

As a result, the Building Standards Futures Programme Board was set up to provide guidance and direction on the development and implement of the recommendations made by the review panels on Compliance and Enforcement and Fire Safety.

The Board's remit is to strategically advise and direct a broad programme of work aimed at improving the performance, expertise, resilience and sustainability of the Scottish building standards framework and services across Scotland. Recommendations are being taken forward through seven work streams which are interlinked and collectively aim to drive transformation of the building standards system in Scotland.

This includes a Compliance Plan Working Group, made up of industry stakeholders and academia, focussing on the development of a new, extended and strengthened 'Compliance Plan' approach, and the creation of a Compliance Plan Manager oversight role acting on behalf of the 'Relevant Person' (normally the building owner or developer) to deliver projects subject to the building regulations. The aim being to deliver greater assurance, through evidenced process, that buildings are compliant during both the design and construction stage.

The Compliance Plan Manager (CPM) role - Enhanced oversight of the building standards system

It is proposed that a CPM will require to be appointed, by the Relevant Person, on all High Risk Building (HRB) projects (detailed in guidance/legislation). The CPM will work collaboratively with the designer and 'contractor' (where appropriate due to procurement route as contractors may not always be appointed at this early stage) to develop a project Compliance Plan for approval with the building warrant plans and details based on the "Compliance Plan Handbook" (CPHB) which would be a development of existing national guidance used by verifiers at present to inform the CCNP. The CPM will oversee and be responsible for ensuring the developed and agreed CP is fully discharged from building warrant pre-application discussion stage through to completion of the project.

The CPM will ensure that the necessary construction compliance evidence documents, as set out in the Compliance Plan, have been collated to support the competent submission of the completion certificate application to the verifiers at the end of the process. Under the Building (Scotland) Act 2003 it is an offence to recklessly submit a completion certificate to a verifier. Such evidence of competent process can, in summary, also provide greater assurance and, if necessary, support redress for those that subsequently take on the responsibility for a completed building or building works.

The proposed Compliance Plan Manager role on High Risk Building Types

The 2018 Consultation on Building Standards Compliance and Fire Safety asked the question:

"Do you agree that the building owner or developer should be required to appoint a competent professional person, with the appropriate experience and qualifications, to act on their behalf in order to assure them of compliance when they submit the completion certificate?"

There were 222 respondents, and 205 responded to the question. The majority (84%) of respondents agreed that the building owner or developer should be required to appoint a competent professional person, with the appropriate experience and qualifications (guidance to be provided in the Compliance Plan Handbook) to act on their behalf in order to assure them of compliance when they submit the completion certificate.

Responses to the 2018 public consultation supported the proposal for the appointment of a competent professional person. The Compliance Plan Working Group, made up of industry stakeholders and academia, was set up to undertake a comprehensive and open discussion around the reality of why non-compliance occurs. The aim being to provide greater assurance that the need and legal responsibility to comply with the building regulations has been understood by building owners, designer, contractors, which is supported by verifiers, from the start to the completion of a building project. To also consider whether a strengthened approach to compliance should focus on high risk projects and safety critical elements. This work has delivered the proposals for a new oversight role acting on behalf of the Relevant Person (normally the building owner or developer). This new role, is referred to as the Compliance Plan Manager. The CPM role, scope and duties are set out in Annex B.

The questions in Part 1 should be considered after reviewing Annex B.

Question 1.1 - Do you agree with the CPM role as detailed in Annex B on projects for all HRBs?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly Disagree

Please select only one answer and provide your reasoning in the box below.

Comments:

Question 1.2 - Do you agree the CPM should be independent of the contractor?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly Disagree

Please select only one answer and provide your reasoning in the box below.

Comments:

Question 1.3 - Do you agree that the CPM role needs to be appointed no later than pre-application stage for all HRB projects?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly Disagree

Please select only one answer and provide your reasoning in the box below.

Comments:

Question 1.4 - Do you agree that a standardised competency framework for the CPM role should be developed by professional bodies/industry?

• Strongly agree
• Agree
• Neither agree nor disagree
• Disagree
• Strongly Disagree

Please select only one answer and provide your reasoning in the box below.

Comments: