Building standards enforcement and sanctions: consultation analysis

5. Section 27 - Taking action 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. A few local authorities, out of 32, have utilised this power, albeit on an infrequent basis. However, most local authorities 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.

To ensure that the legislation is clear, and to reflect the introduction of the Compliance Plan approach for High Risk Buildings (HRBs), the proposals include clarifying the powers under section 27 to ensure local authorities have the option 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 the use of this enforcement power at their discretion.

Overall, two thirds (67%) of respondents supported this proposal to some extent; 30% strongly agreed and 37% agreed. However, 14% of respondents disagreed with the proposal. Support was higher among individuals than organisations - 78% of individuals agreed, with 39% strongly agreeing, compared to 60% total agreement and 24% strongly agreeing among organisations. Both individuals, local authorities and professional associations expressed some disagreement.

Over three fifths of respondents left an open comment in response to Q4, with the views expressed typically in line with the levels of support and opposition recorded in the closed question. The most prevalent theme was general agreement with the proposal because of a perceived need to take enforcement action, with some advocating this should be extended beyond HRBs. While a majority agreed with the proposal, many open comments asked for further detail, or highlighted reservations. For example, some sought greater clarification on how the proposal would work in practice, or raised concerns such as the potential impact on verifiers’ resources. Not all comments addressed HRBs specifically, so was unclear if their view was about HRBs or enforcement action more generally.

Rationale for agreement with enforcement action

The most prevalent theme raised by many, half of whom were local authorities, was an agreement that enforcement after the acceptance of a completion certificate could be required, for High Risk Buildings in particular. One local authority noted that this proposal would align Scotland with the Building Safety Act 2022 in England. A professional/membership body argued that the proposal could be important in the short term as new building safety regulations are introduced. They suggested it may be necessary to revisit buildings that have received a completion certificate if there are regulations or risks that have not been understood or assessed at the time of completion.

"I believe that the impact from non-compliance in a HRB is greater than in other buildings so agree generally that there should be clarification on the process available to use if the verifier deems fit to follow through.” – Local authority

Some, including organisations that either agreed or disagreed with the proposal, did so because they felt the proposal should apply to all buildings, not just High Risk Buildings. One local authority expressed a view that action was more likely to be required for newly built multi-plot housing.

“Why does this only apply to HRBs? Is it OK to falsely obtain a completion certificate on a low risk building? What message does this send to developers?” - Individual

Clarification on how it will apply

Some local authorities, including a mix of those who agreed, disagreed or were neutral about the proposal, sought further clarification on issues such as:

• The definition of reasonable enquiry and the specific circumstances where enforcement can be pursued.
• How could the provision be introduced in a way that it applied to only certain building types?
• How and on whom would action need to be taken, e.g. could the verifier rather than the contractor be at fault?
• If a building has been purchased from a developer, would the developer or the new owner be responsible for compliance after the acceptance of a completion certificate?
• Who would be responsible if the main contractor is no longer operating?
• Whether particular areas of compliance will be focused on, e.g. life/fire safety, structural safety rather than drainage issues, air tightness, foundation failure, etc.

One organisation disagreed with the proposal and stressed the need to clarify and communicate the discretionary nature of the provisions:

Section 27 is a discretionary power and is unlikely to result in the Local Authority physically undertaking work should the relevant person fail to act on any issues found. The discretionary nature of section 27 must be highlighted should an extended use of section 27 be outlined in the future. [We] note that the BSD do not necessarily see the level and type of enforcement activity by the Local Authority significantly changing should clarification be provided. This position may not be shared or understood by the general public resulting in a significant resource being taken up to explain the limitations of section 27.” – Local Authority

Need for improved inspection and verification

Some respondents, including a mix of those who agreed, disagreed or were neutral about the proposal, voiced concern that this new measure could mean the existing inspections to achieve a completion certificate are not detailed enough to uncover hidden compliance issues. They gave the specific example of ‘firestopping of services to reinstate compartmentation’. Respondents suggested more regular inspections should be made as a building progresses to ensure compliance, particularly for HRBs. One organisation noted that building control officers are not onsite as regularly as they used to be, which increases the potential for issues to arise after the completion certificate has been accepted.

Other points raised

• Several raised concerns about funding, reiterating concerns about the additional cost and resources that could be placed on local authorities, in particular, to undertake further inspection and monitoring.
• Three felt the proposal might not lead to the non-compliance being resolved, while one professional/membership body suggested that additional reliance on retrospective investigations could lead to less emphasis being placed on compliance prior to the acceptance of a completion certificate.
• Two organisations who disagreed with the proposal suggested that issues arising after the acceptance of a completion certificate should be dealt with between the relevant parties in line with the conditions of their agreed contract.
• Two organisations suggested existing powers within the Act should suffice, and a local authority that disagreed with the proposal called for better guidance around how the existing section 27 provisions could be used.