Building standards enforcement and sanctions: consultation

Part 1 - Building Standards Enforcement and Sanctions: Consultation

Building (Scotland) Act 2003 – Amendments

1. Overview

In Scotland, a Ministerial Working Group was set up following the tragic fire at Grenfell Tower in 2017, to review building and fire safety regulatory frameworks. The Group commissioned two reviews of building standards; one to cover compliance and enforcement and the other fire safety. The Review Panel on Building Standards Compliance and Enforcement identified the need for improving aspects of the building standards system (covering procedural compliance, built compliance and enforcement of both procedural matters and non-compliant work).

As part of the compliance and enforcement review, consideration was given to the issues and findings of the Independent Inquiry into the construction of both the Edinburgh Schools (Cole Report) and the DG One leisure complex in Dumfries independent inquiry report. This included considering the importance of site inspections and supervision and the roles, responsibilities and competency of different persons involved in building projects.

A public consultation was carried out between July to September of 2018. The majority of respondents to the consultation were in favour of the proposals presented. In the 2018 consultation analysis report, it confirmed that 75% of responses expressed support for increased fines for non-compliance with building regulations.

A review of the measures needed to deliver change for the building standards system was taken forward under the remit of the Scottish Government, Futures Board. The Board was set up with the purpose to identify measures to strengthen the building standards system.

Another public consultation on Building Standards Compliance and Enforcement was carried out between 11 November 2021 and 4 February 2022.

The consultation sought views on the proposed changes to strengthen the building standards system initially for High-Risk Buildings (HRBs) by:

• Requiring applicants (building owners and developers) to evidence and document how compliance with the building regulations has been approached from a 'pre-application meeting' (initial) stage through to completion of the building project.
• Strengthen compliance across all building types with the new Compliance Plan approach and also to introduce a requirement for independent professional oversight - a Compliance Plan Manager - on high-risk buildings (high rise residential, high public value - schools, healthcare facilities, and also housing sites) to manage the compliance process from start to finish.
• Increasing the current level of fines where work is not carried out in accordance with the building regulations, and
• Asking if the existing powers for local authorities to take action on work not meeting building regulations is adequate.

Note - HRBs include new build, conversions, alterations and extensions and are defined as:

Higher risk buildings (HRBs)

• Domestic building or residential building with any storey at a height of more than 11 metres above the ground.
• Educational establishments (schools, colleges and universities), community/sport centres and non-domestic buildings under local authority control/where they have an interest in a building.
• Hospitals
• Residential care buildings

The responses to the consultation^[1] recognised the importance of achieving compliance first time. This is viewed as a critical point, and that any enforcement is always a backstop when all other options for resolution have failed. The current enforcement powers are considered adequate for local authorities to take action on work where it does not meet building regulations or not in accordance with a building warrant. There was however support for strengthen existing enforcement powers and increasing penalties for offences in the Building (Scotland) Act 2003.

2. Background - The Building Standards System in Scotland

The building standards system in Scotland is established by The Building (Scotland) Act 2003 (The Act). The purpose of the building standards system is to protect the public interest.

The building standards system is pre-emptive and is designed to check that proposals meet building regulations. The main principles of the system are that a warrant must be obtained before work commences on site and a completion certificate is accepted by a verifier if, after undertaking reasonable inquiry, they are satisfied the building work meets the building regulations, prior to the building being occupied.

The buildings standards system relies on the building warrant applicant, normally the building owner, to control the work on site. They are also normally the ones certifying the work complies with the building warrant and building regulations at the completion stage.

Responsibility for compliance with the building regulations lies with the "relevant person" and ultimately with the building owner. For the purposes of the Act the relevant person is -

• any person carrying out the work; that is a self-build owner or tenant,
• a developer who is the builder,
• any person for whom the work is to be done; that is an owner, tenant or developer who is not doing the work but has engaged a builder to do it; and
• the owner; if the owner is different from those persons above.

The thirty-two local authorities in Scotland are appointed by Scottish Ministers as verifiers to administer the building standards system in their geographical areas. The appointment as a verifier is made on the condition that local authorities meet the requirements of the Operating Framework and Performance Framework.

Their primary function is to protect the public interest by providing an independent check of applications for building warrant to construct or demolish buildings, to provide services, fittings or equipment in buildings, or to convert buildings. This includes checking the design before granting a building warrant and checking during construction before accepting a completion certificate.

The Act gives powers to local authorities to take enforcement action. Local authorities are autonomous bodies under the Local Government (Scotland) Act 1973, and it is not the role of Scottish Ministers to intervene in enforcement matters. It is for the local authority to determine the most appropriate course of action, taking into account the particular circumstances of each case.

3. Aim

The aim is to strengthen existing enforcement powers used by local authorities (LAs), and increase existing penalties for offences to act as a deterrent to persons who commit offences under the Act.

The proposed changes will send an important message to the actors with roles in the Act e.g. building warrant applicant/owner/relevant person, that they should take their responsibilities seriously. By strengthening existing sanctions and increasing penalties for offences this will send a clear message that by not fulfilling their roles set out in the Act, and Building (Scotland) Regulations 2004, as amended (building regulations) their actions could have consequences that affect the health and safety of building occupants.

4. Proposals

The proposals aim to strengthening existing provisions, Section 21 Occupation or use without completion certificate, 27 Building warrant enforcement notices, and 48 Penalties for offences of the Building (Scotland) Act 2003. These proposals are to:

• Include owners in the offences for occupation without completion (section 21)
• Include removal of work, introduce a standalone stop notice, and clarify the scope of section 27 to take action after acceptance of a completion certificate for Higher Risk Buildings (HRBs) with a time limit for serving enforcement notices (section 27).
• Increase penalties for offences (section 48) that will also apply to Offences by bodies corporate etc. (section 49).

Section 21 - Occupation or use without completion certificate

Section 21 is an existing provision in the Act that gives local authorities powers to take action (i.e. refer case to the courts), for the offence of occupation without a completion certificate against "any person who occupies or uses a building".

Local authorities have made Scottish Government aware that new or converted buildings are being occupied without a completion certificate or temporary occupation certificate. For example, where the building owner is allowing occupation of the building for rent /short term lets without completion or temporary occupation certificates.

The existing provision allows local authorities to take action on the persons occupying/using the building, but not on the building owner who is allowing the building to be occupied/used. Amending section 21 to include an offence by the building owner would allow local authorities to take action on them, and send a clear message that occupation without the necessary certificates is not acceptable.

Section 27 - Building warrant enforcement notices

Section 27 is an existing provision in the Act. Starting work without a building warrant or not in accordance with the building warrant is an offence against the Act, and attracts penalties.

Where work is done without a building warrant or not in accordance with the building warrant, local authorities can serve a notice under Section 27 Building Warrant Enforcement Notices to remedy the situation. Section 27 includes steps to be taken to secure compliance, and if appropriate for the work to be "suspended" (stopped).

The current wording does not give local authorities the option/flexibility to have the work removed where this is considered a more appropriate response. Although provision is made for work to be "suspended" (stopped), a clearer message is sough that the work must "stop".

Section 27 - Removal of work

Local authorities have made Scottish Government aware that when non-authorised work is brought to their attention, they discuss/give owners options how they may remedy the situation. These are to comply with the requirements of the Act i.e., obtain a building warrant where one is required, and/or comply with the building regulations. However, some owners would rather remove the work rather than make changes to existing work. The Act currently does not make provision for work to be removed, only that work meets building regulations.

Introducing a new provision for the removal of work would give local authorities more flexibility with building owners on how the situation is remedied. i.e. remove any work done without a building warrant or not done in accordance with building regulations. The current wording does not give local authorities the option/flexibility to have the work removed where this is considered a more appropriate response.

Section 27 - Stopping work

Section 27 also gives local authorities powers to suspend work (stop work). The views from local authorities are that a standalone "stop notice" would send a stronger and more effective message to actors that there are consequences to their actions.

This would enable the local authority to have work "stopped" until the owner/developer gained consent to continue on site. This step is expected to be a more effective deterrent, and would provide useful evidence should the local authority be required to take formal action including prosecution.

Section 27 - Clarification on the scope of section 27 for taking action by the local authority after acceptance of the completion certificate

The provisions under section 27 may be used by local authorities to address work not in accordance with the building warrant and building regulations, once the verifier has accepted the completion certificate. Local authorities do utilise this power. However, they are reluctant to use it for cases after the acceptance of the completion certificate as they do not think the scope is set out clearly in the Act.

The acceptance of the completion certificate does not appear to prohibit the local authority serving a building warrant enforcement notice requiring that the work complies with the building warrant and building regulations.

When the verifier accepts the completion certificate, they are satisfied after reasonable inquiry that the work was carried out in accordance with the building warrant and building regulations. However, any failures may not have been readily identifiable at the point of acceptance of the completion certificate even after reasonably inquiry. The acceptance of the completion certificate is therefore not conclusive of compliance with a building warrant, as reasonable inquiry alone does not enable the verifier to establish how all the works were carried out.

We need to ensure that the legislation is clear, and that it addresses the doubt over the use of Section 27 for local authorities to take action after acceptance of the completion certificate. To reflect the work being carried out under the Futures Board, Compliance Manager role for Higher Risk Buildings (HRBs), the proposals include clarifying /extending the powers under section 27 to give local authorities powers to take action on HRBs after the acceptance of the completion certificate. The clarification of the use of section 27 would allow local authorities to consider use of this section at their discretion.

Section 27 - Introduction of a time limit

The power under section 27 does not currently contain a time limit for local authorities to take action on all work subject to a building warrant and building regulations. The Building Act 1984 in England was amended by the Building Safety Act 2022 to increase the existing time limit from 6 months to 10 years. A time limit for local authorities for serving notices (requiring removal or alteration of non-compliant work) under the Act is proposed to be 10 years.

Section 48 - Penalties for offences

We are seeking to strengthen the message to actors with roles in the building standards system that they are responsible for compliance with building regulations. Starting work without a building warrant or not in accordance with the building warrant is an offence against the Act, and attracts penalties under section 48.

Where an offence has occurred, the Act sets out the penalties applicable under section 48. If a person is guilty of an offence, they are "liable on summary conviction to a fine not exceeding level 5 on the standard scale." The standard scale is specified under the Criminal Procedure (Scotland) Act 1995 and a level 5 fine is set at £5,000 - £10,000.

Penalties for offences are applicable to work that does not meet building regulations at design, construction and completion stage. The Act sets out when an offence has been committed where new work or conversion of buildings is being carried out. This includes offences by the building owner, verifier and certifier of design and certifier of construction.

The level of fine at the statutory maximum at level 5 (£5,000 - £10,000) is considered fit for purpose for low-risk projects e.g., alterations and extensions to domestic buildings, which account for the majority of building warrant applications. However, for higher risk types of buildings, which are usually larger and more complex projects, the penalties are considered to be too low to and not proportionate for the offence committed, and do not act as a deterrent for those committing offences.

A comparison of similar legislation for similar types of offences and penalties has been considered. If the penalties were increased to the same level of the fines applied in the Housing (Scotland) Act 2014 and Planning (Scotland) Act 1997 and 2019, this would provide the courts more flexibility in applying appropriates penalties for offences for higher risk buildings. The introduction of a maximum two year prison term, and maximum penalty for offence of £50,000 is proposed.

This would also bring Scotland into alignment with the Building Safety Act 2022, and Building Act 1984 applicable in England and Wales, where penalties for offences for not meeting building regulations introduced a two-year sentence. The Building Act 1984 in England is the equivalent of the Building (Scotland) Act 2003 and similarly establishes the building standards system.

The proposed changes aim to increase the penalties for offences and include a prison term under section 48. The increased level of fine will give the courts flexibility to decide the level of the fine against the type of offence. This will act as a greater deterrent to actors with responsibilities in the building standards system and allow the penalty to be appropriate for the offence. The existing fine is already applicable to section 49 Offences by bodies corporate.

The amendments proposed are:

• increasing the level of fine from level 5 on the standards scale to £50,000
• introducing a two-year custodial sentence; and
• option for fine and/or custodial sentence

5. How We Would Like You to Help

This consultation is comprised of 12 questions related to:

• Part 1: Building Warrant Enforcement and Sanctions
• Part 2: Impact Assessments

Responses to the consultation will be used to inform the final policy and impact assessments that will be prepared to support any legislative changes.

Information on how to respond to the consultation is on page 17.

6. Consultation questions

Section 21

Question 1 - Do you agree with the inclusion of holding owners accountable for new/converted buildings which are occupied illegally?

Strongly agree

Agree

Neither agree nor disagree

Disagree

Strongly disagree

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

Section 27

Question 2 - Do you agree with the proposal to include a new provision for the removal of work on the section 27 Building Warrant Enforcement Notice?

Strongly agree

Agree

Neither agree nor disagree

Disagree

Strongly disagree

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

Stopping work

Question 3 - Do you agree that the provision of a standalone stop notice under section 27 would act as a helpful deterrent?

Strongly agree

Agree

Neither agree nor disagree

Disagree

Strongly disagree

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

Question 4 - Do you agree with enforcement after the acceptance of a completion certificate for High Risk Buildings?

Strongly agree

Agree

Neither agree nor disagree

Disagree

Strongly disagree

Do you have any views on enforcement after the acceptance of a completion certificate for HRBs ?

Time limit

Question 5 - Do you agree that the introduction of a time limit is necessary?

Yes

No

Unsure

Question 6 - Do you agree with the introduction of a 10-year time limit for taking action on non-compliant work?

Yes

No

Unsure

Question 7 - Do you have any views on the 10-year time limit proposed?

Section 48

Question 8 - Do you agree with the level of fines proposed?

Yes

No

Do you have any views on the level of fines?

Question 9 - Do you agree with the option to include a custodial sentence?

Yes

No

Do you have any views on the proposed option to include a custodial sentence?