Building warrant fees: consultation analysis

4. Part 3 – Building Standards Enforcement

Part 3 of the consultation explored two possible ways to use building warrant fees. These were using a portion of fees to fund compliance enforcement related to the building warrant process, or to fund local authority building standards’ wider statutory role covering both building warrant compliance enforcement and dangerous and defective buildings. The perspectives expressed on these two options is presented in this chapter.

Q3.1 Should a portion of building warrant fees be used to fund the local authority compliance enforcement role but only as it relates to the building warrant process

Overall, three fifths (59%) supported this proposal, one fifth (21%) were opposed, and one fifth (18%) were unsure. Broadly similar results were recorded across all types of respondents, though support was higher among local authorities (64%) and lower among contractors/developers (50%).

Provides a source of funding

Two thirds of respondents provided an open comment in Q3.1. The most prevalent theme was that there must be a proportionate and adequately funded enforcement process, and that a portion of building warrant fees would be a reliable and appropriate funding source. Organisations, in particular local authorities, expressed this view.

The time spent by verifiers on the building warrant enforcement process was noted by some, who called for this time to be accounted for in building warrant fees. This included inspection visits to ensure work is being done to the approved design, and a few also highlighted their soft enforcement activities and the need for these to be funded. A few suggested using a portion of fees to fund compliance enforcement should or could lead to greater consistency in building standards across Scotland.

“This is a hugely important area of resource allocation. It must be understood that the verifier currently expends a lot of time on building warrant process enforcement which is not currently reflected in the current fee model.” - Individual

“Compliance enforcement is technically a local authority role and is included in the GAE [Grand Aided Expenditure] payment. However, there is a great deal of soft enforcement work done avoiding the need for formal enforcement. This level of engagement with applicants, agent and contractors should be paid for by the warrant fees.” – Local Authority

“[We] believe that a portion of the fee income should be used for this purpose. Enforcement is an essential but very time-consuming process and in current practice is solely funded through fee income and not GAE. It would lead to a more consistent and uniform approach if this can be recognised and designed to be funded from fee income moving forward.” – Local Authority

Some noted that their support was only for building warrant enforcement – for example, works carried out on a building without warrant approval – and not for wider statutory obligations, which are addressed in Q3.2. However, a small number argued that a portion of fees should cover all enforcement.

“The fees should pay for the entire cost of the statutory building standards service, including all responsibilities related to enforcement. Regardless of whether a warrant is involved, each aspect of enforcement is mandated by legislation and needs to be supported appropriately. We must have a clearer way or explanation of how they are to be funded if the verification fees are not sufficient to pay all enforcement activity.” – Organisation

Two contractors/developers agreed with the approach but called for greater cooperation between building standards and developers, e.g. providing additional advice and guidance about increasingly complex regulations and feeding any learnings back to housebuilders. One organisation suggested that using a portion of fees in this way should improve service levels.

“Yes, we support building warrant fees can be used to fund the local authority compliance enforcement role if they are improving the quality of service being provided in the building warrant process. We support the increase in fees if it relates to addition in resourcing and training to provide quality and timely services.” – Organisation

Unfair on those who follow the rules

Several respondents, including individuals and organisations, argued that using a portion of fees for building warrant enforcement would be unfair to individuals or developers who comply with the building warrant process. Most respondents in this theme opposed the proposed approach for this reason; however, a few supported the approach but noted that this should be a consideration.

“This would seem to be a 'tax' on those customers who carry out the work in compliance with the building warrant - why have applicants who do everything as they should be paying more in fees just to cover a LA costs in dealing with enforcement - this should be charged solely against the offending party.” – Local Authority

“We believe that resources required to enforce non-compliance issues should not be paid for through building warrant fees. It should instead be funded by the Local Authority through other means of by companies/persons responsible for the non-compliance. Higher costs to any developer often result in higher costs to the home purchasers. Developers/New Home Purchasers should not be penalised with greater costs for those that choose not to comply with building standards.” – Organisation

“Unsure as to whether the building warrant fees is the most appropriate mechanism for funding all enforcement. Perhaps it should part fund initial administration processes/register etc but individuals who require the enforcement should really be the main target in terms of fees. Enforcement fees based entirely from the building warrant process may result in penalising those who comply with the requirements of the legislation.” – Local Authority

Must be clearly defined and transparent

Ensuring a transparent and effective allocation of fees was noted by some respondents, mostly local authorities, who either supported or were unsure of the approach. It was argued that the use of fees should be clearly defined and monitored to ensure that money intended for enforcement is not used to fund other local authority services. One individual argued that the portion of fees assigned to enforcement should be capped and reviewed annually, and not viewed by local authorities as a way to generate income. A local authority noted their reservations about the proposal, asking for further clarification on how funds would be allocated and how the allocation would lead to improved enforcement consistency.

“It would require careful consideration to ensure any money attributed to enforcement actually goes to serve this purpose and not diverted to other parts of the local authority and therefore not supporting the intended purpose.” – Local Authority

“Firstly, it is essential that the allocation of funds to enforcement duties is clear and transparent. Without a clear and well-defined mechanism for ringfencing these funds, there is a risk that they may be diverted to other purposes, potentially undermining the intended improvement in enforcement.” – Local Authority

Other themes

Some respondents, mostly individuals, agreed with the suggested approach and commented on the importance of building warrant compliance and enforcement to prevent poor quality building work and ensure public safety.

Other funding sources were suggested by some. These included that enforcement costs should be covered by Grand Aided Expenditure (GAE), by separate fees for additional interventions such as for maintenance at sports grounds, or by a fee penalty system for additional inspections and guidance, particularly where work has been undertaken that is not in line with approved plans. A small number either stated that enforcement is already funded as per the question or questioned why this is not currently the case.

Two contractor/developers argued that any portion of building warrant fees used for additional compliance would also need to result in improved service levels from building standards teams. One individual called for the Scottish Government to have sole responsibility for enforcement as they felt local authority staff did not have the skills to manage a legal process.

An organisation argued for a different approach, which was endorsed by a small number of other contractors/developers. However, it was noted that this would require a change to legislation. One local authority also added that legislation supporting enforcement is ‘cumbersome and overly complicated to administer’, often resulting in non-compliance being ignored or overlooked.

“Compliance is a much debated subject, and it is [our] opinion that compliance oversight should be the responsibility of the Local Authority/Building Control team. This will ensure that verified designs are built on site. A change would be needed to current legislation in order to ensure compliance for bringing Local Authorities/Building Control into scope.” – Organisation

One individual suggested that the rise in unauthorised work highlighted the need for a national campaign to advise people of the requirement to get a building warrant.

Q3.2 Should a portion of building warrant fees be used to fund the local authority building standards wider statutory role covering both building warrant compliance enforcement and dangerous and defective buildings?

One third (33%) supported this proposal, while 48% were opposed and 17% were unsure. Contractors/developers held much stronger views than other types of respondent, with 78% opposed and none in favour, with 17% unsure.

Should be considered and funded separately to building warrant process

Just over three quarters of respondents commented on Q3.2. The most prevalent theme in responses was that local authorities’ wider building standards’ statutory role, including dangerous and defective buildings, is separate from the building warrant application and verification process and should be funded separately. However, this theme encompassed multiple related strands of comments.

Several respondents, mostly local authorities, stated that statutory building standards work should be funded separately from any building warrant verification work. A few elaborated, stating that statutory activities take up a significant proportion of staff time and that using a proportion of fee income would unlikely cover the full cost of this work.

“Funding for the wider non-verifier role of building standards should be separate from [building warrant] fees. This is a major part of the building standards workload.” – Local Authority

“The cost of enforcement, particularly on dangerous buildings, can be significant, and it could take a significant portion of any fee increase to adequately fund a system. That could overburden the warrant fee scales. Many authorities also have limited involvement in such matter and therefore spreading the cost generally across the fee system also would not adequately fund those with a significantly higher involvement.” – Local Authority

More specifically, some contractors/developers commented using the same or similar wording that: “Dangerous and defective buildings should be under the remit of another department outwith Building Control Compliance.”

Another prevalent theme was that the building warrant fee should only be used for the building warrant verification process because doing otherwise would mean law-abiding applicants were unfairly paying to address issues they were not responsible for. Several respondents, including both individuals and organisations raised this.

“As I understand, this role falls out with the verification role and is already funded through a central government grant. I would expect this to remain the case, and local authorities use every penny of my fees on my projects and not on those who require enforcement action. Why should I pay for enforcement of other people’s poor work?” - Individual

“We would suggest that funding is required but that it should come from other central sources. The dereliction of buildings or the damage to buildings from unforeseen events is not the fault of the user of the building standards warrants system.” – Local Authority

Several respondents also suggested that any additional funding for statutory activities should be generated from fees or charges levied on those who are subject to enforcement or the owners of dangerous and defective buildings. A small number argued that this should reflect the time required for these activities.

“A warrant application is for a specific purpose. Dangerous buildings should not be subsidised by applications. All buildings have owners; charge them.” – Individual

“Local authority costs associated with dangerous and defective buildings should be recovered from the owners of the buildings concerned. These costs should include a premium to cover pre-emptive action by local authorities.” – Organisation

“Dangerous/defective/enforcement should be or has more impactful and fair impact if funded from their own fees. Perhaps a portion of the fee should specifically be used to maintain procedural elements of the above such as maintaining the Dangerous and Defective buildings register, providing guidance and advice, website activities, statistical information, maintaining adequate resources to the general tasks etc but other ‘top up’ fees should be gained directly from those who are failing to adhere to the legislation involved.” – Local Authority

Would provide additional funding for statutory activities

Conversely, the next most prevalent theme in comments was that using a portion of building warrant fees in this way would provide additional funding for necessary enforcement and compliance work. Some respondents stated this would provide a valuable funding source for time and resource-intensive work. A local authority noted, however, that councils will have different volumes of enforcement work, meaning that some will benefit more financially than others from this approach.

“The full cost of the statutory building standards Service, including all enforcement tasks, should be covered by the fees. All aspects of enforcement, as part of a warrant or not, are statutory and require to be funded accordingly. If the verification fees do not cover all enforcement activity, a clearer method or explanation of how these are to be funded is required urgently.” – Local Authority

Some respondents, including two local authorities, agreed that the proposal could be useful as local authorities face increased enforcement costs. This was attributed to various issues, including more old buildings, poorly constructed buildings and absent owners.

“I think that, from a responsibility and sustainability [point of view], we will be faced with an ever-increasing number of old and defective buildings which require constant maintenance. Therefore, I would agree with raising the fees to a level that allows for a significant level of pro-active assessment of dangerous and defective buildings.” - Individual

A few respondents reflected more broadly on the importance of building safety and, therefore, the need for effective enforcement. For example, the one organisation supported some building warrant fees funding the wider statutory role as this would: ensure public safety, ensure funds are available for both pro-active and reactive building standards work, and act as a deterrent and ensure better initial compliance.

Up to local authorities to decide

A small number agreed with the suggested approach, commenting that local authorities should be able to choose how they want building warrant fees to be used, or that they would have no objection to this happening. Conversely, a few individuals were opposed as they argued that local authorities should be able to fund their statutory roles from their existing budgets if these were managed properly.

Must be clearly defined and transparent

As in Q3.1, some respondents – mostly local authorities – were unsure how the approach would work in practice. They suggested that, if implemented, the portion of fees used for statutory activities should be allocated transparently and ringfenced for that purpose. Two respondents commented that it was difficult to consider without knowing the level of enforcement currently being undertaken.