Building standards enforcement and sanctions: consultation analysis

3. Section 27 - Removal of work

Starting work without a building warrant or not in accordance with the building warrant is an offence against the Act, but local authorities can serve a notice under section 27 Building Warrant Enforcement Notices to remedy the situation. Local authorities have made the Scottish Government aware that when non-authorised work is brought to their attention, they discuss and give owners options on how they may proceed. These are to comply with the requirements of the Act i.e., obtain a building warrant where one is required, or comply with the building regulations.

However, some owners would prefer to remove the work rather than make changes to existing work. The current wording of the Act does not give local authorities the option to have the work removed where this is considered a more appropriate response, only that work meets building regulations. Q2 asked respondents to consider a new provision for removing any work done without a building warrant or not done in accordance with building regulations. This aims to give local authorities more flexibility with building owners on remedying the situation.

Over four fifths (83%) supported this proposal; over half (53%) strongly agreed, and three in ten (30%) agreed. Three quarters (78%) of individuals were in favour (56% strongly agreed), compared to almost nine in ten organisations (88%, with 52% strongly agreeing). However, none of the three commercial organisations who responded to the consultation strongly agreed.

Almost three fifths of respondents left an open comment in response to Q2. Given the high support for the proposal, most comments elaborated on the potential benefits of introducing the change; typically that a new provision would act as a deterrent, improve compliance and offer more options to local authorities and owners. Several organisations, including both those who agreed with the proposal and those who neither agreed nor disagreed, raised additional points for the Scottish Government to consider, particularly the need for flexibility in applying the provision.

A new provision helps compliance

Many agreed with the proposal to include a new provision for the removal of work on the basis this would deter unauthorised work, encourage better quality buildings, and strengthen enforcement measures.

“In principle, we agree that works that do not comply with the appropriate standards should be removed or modified and that local authorities have discretion to do so. We believe this will help to discourage malpractice and facilitate the rectification of unsafe work.” – Professional/membership body

Respondents reflected that the provision would discourage unauthorised works and encourage compliance with building standards if this new provision was enforced by local authorities. A professional/membership body noted that it is not always possible to retrofit or alter works once a building has been constructed, so removing work may be the only way to comply with regulations. One local authority felt the provision aligned with the findings of the independent Inquiry into the Construction of Edinburgh Schools and the broader consultation proposals. Three respondents stated that the proposal provided clarity and sent a clear message to deter non-compliance.

Provides greater flexibility and choice

A provision to remove non-compliant work was welcomed by many, who argued this would offer greater flexibility or choice in the options available to local authorities and owners. Greater choice would, therefore, allow parties to agree on the most suitable course of action depending on the circumstances of each building. For example, one local authority noted that an owner might prefer to return a building to its previous condition once they appreciate the scale of work required to comply with building standards. In their view, the capacity to provide a notice that recognises that work has been carried out but returned to its original state would be beneficial in these situations.

Other considerations

Several organisations raised other points to consider. The need for flexibility in applying the provision was requested by some. For instance, two organisations called for constructive discussion with the owner or all relevant parties to achieve a satisfactory resolution. One of these organisations – a professional/membership body – cautioned that local authorities should not be allowed to issue removal of work notices as a quick, default response instead of encouraging constructive dialogue.

One commercial organisation requested ‘reasonableness of response’ that determined the seriousness of the non-compliant work, with flexibility applied to obtain a satisfactory solution. A commercial organisation noted that the potential for the provision to be misapplied, arguing for checks and balances and for proposed removals to be referred to the appropriate enforcement authorities.

Other points raised

Two organisations raised concerns about the potential cost to local authorities of removing non-compliant work if the owner did not do so, or that local authorities may not use these powers if they did not have the funds available to remedy work. The cost of providing resources and training to enforce regulations was raised by another organisation.

“In cases where substantial works have been carried out, and a notice is not complied with, this could place a significant financial burden on the local authority. In all cases, Section 27 powers are discretionary, and the LA may decide not to carry out the works required to regularise a situation under the terms of a notice.” – Local Authority

Points each raised by one respondent included:

• A commercial organisation questioned whether giving the option to remove work and “simply put works back the way they were” sent out a strong enough signal to owners that they must comply with their legal obligations.
• An individual called for professionals such as architects or surveyors engaging in non-compliant work to be automatically referred to their professional bodies and struck off for repeat offences.
• Conversely, one local authority noted that as well as amending the notice, local authorities need to have the ability to remove the work to ensure compliance.

“The question asked is in the context of allowing for the removal of the work within the notice itself. It is important that this provision is also available to the LA [Local Authority] under S27 (7)(b) of the 2003 Act. In other words, the removal option may be cited in both the notice served on the relevant person, but the LA may also remove the work rather than the current provisions where the LA must make the work comply with the building regulations.” – Local Authority