Building standards enforcement and sanctions: consultation analysis

6. Section 27 - Introduction of a time limit

The current power under section 27 of the Act does not contain a time limit for local authorities to take action on all work subject to a building warrant and building regulations. The consultation proposes introducing a 10-year time limit for serving notices. This chapter presents the analysis of responses to Q5, Q6 and Q7, which addressed this proposal.

A majority of all types of respondents agreed with introducing a time limit. Seven in ten (70%) agreed overall, with similar levels recorded by both individuals (67%) and organisations (72%). Support was highest among local authorities (80%).

Mixed views were expressed on the introduction of a 10-year time limit. Overall, just under half (47%) were in favour, a further 47% opposed, and 7% did not answer. Individuals were more likely to be opposed than in favour (56% compared to 44% respectively). Conversely, 48% of organisations were in favour and 40% were opposed. While support was lower among professional associations (29%), they were also least likely to oppose the proposal (29%), with the remaining 43% not answering.

Q7 - Do you have any views on the 10-year time limit proposed?

Almost three quarters of respondents left an open response in Q7, providing comments both for and against the introduction of (i) a time limit and (ii) the proposed 10-year limit.

Just under half of respondents agreed with both proposals. Among this group, most left brief comments reiterating their agreement; some reflected on the opportunity to introduce greater alignment and consistency across local authorities and the UK.

One quarter agreed with the introduction of a time limit, but not with the 10-year proposal, primarily arguing that this is too long. Conversely, one quarter disagreed with both proposals; these respondents called for longer limits, or the absence of a time limit for taking action.

Rationale for agreement among those who expressed support for the time limit

Several of those who supported the proposed 10-year limit left brief comments reiterating their support. For example, one argued that a 10-year limit would incentivise all parties to take a ‘right first time’ approach to meeting building standards requirements, and provide certainty that no further steps would be taken by a verifier after a period of time during which it has been established that a building has been built correctly.

Some argued that a time limit could enhance consistency and continuity across the UK. However, one professional/membership body highlighted a potential inconsistency with the Building Safety Act, which they claimed had a time limit of “30 years retrospectively for claims accruing before 28 June 2022 and to 15 years for claims accruing after 28 June 2022”.

Two individuals agreed with a 10-year time limit, noting this would ensure a consistent approach across local authorities. Another organisation suggested alignment with other regulations:

“We agree the time limit should be at least ten years as proposed. However, for greater local consistency, it may be worth consideration of alignment to other statutory periods, such as those within section 7 of the Prescription and Limitation (Scotland) Act 1973 (which is twenty years).” - Professional/membership body

Rationale for disagreement with the proposed time limit for taking action

Several respondents, including three local authorities, agreed with a time limit but disagreed with the proposed 10-year limit on the basis this was too long. Among those who suggested an alternative, one local authority felt that most non-compliance issues would become apparent within five years, and two individuals felt the limit should be six months, followed by court action.

“Whilst a time limit would give more certainty for building owners and local authorities as to when notices can be served, 10 years is a significantly long period for local authorities to revisit work.” – Professional/membership body

Several respondents, primarily individuals, argued that there should either be a longer time limit or no end date to being able to take action on non-compliance if a risk to life or serious breaches affecting the safety and integrity of the building arose at any point in the life of the building.

Three respondents felt a 10-year limit was insufficient on the basis that it could take longer to identify non-compliance, by which time, the issue may have been passed on to subsequent buyers. A local authority suggested a 20-year limit could deter builders from non-compliance in the hope they could pass on the problem. Similarly, one professional/membership body noted that the limited resources of verifiers could mean that it takes time for non-compliance to come to the attention of a local authority. They argued that it would be inappropriate for a non-compliant building to ‘slip the net’ because it takes longer than the time limit for issues to come to verifiers’ attention.

“The problem with a time limit is that malpractice will only be discovered when there is reason to investigate parts of the building. There are likely to be few, if any, reasons to investigate a building within 10 years of its completion. Failures and developing problems are likely to become apparent over a long period of time or after a disaster such as Grenfell. There is no rationale to limit the window for action to just 10 years, particularly when owners of flats expect their property to last for more than 100 years.” – Individual

Two organisations about the proposal urged the Scottish Government to ensure that the time limit, if introduced, does not negatively impact when verifiers can take action.

“The Building Act 1984 had a time bar of 12 months for section 36 notices, and this has been extended to 10 years. However, the B(S)Act does not appear to cite any such time bar. That being the case it may be beneficial not to introduce the 10-year time constraint and leave LAs' open to take enforcement at any point after the unauthorised work has been completed.” – Local Authority

“Currently, there is no time limit on the action that can be carried out by local authorities. However, the consultation seems to suggest that the lack of a time limit may actually be the cause of inaction due to them being “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”. As such, care needs to be taken to ensure that introducing any kind of time limit equates to a lessening of existing standards. Whereas in England the ten-year time limit represented an increase in the local authority powers, in Scotland this may be a lessening.” - Professional/membership body

Other points raised

Resource concerns were raised by three local authorities. One highlighted potential negative consequences such as limitations on enforcement flexibility, impact on complex cases, administrative burden, and legal and procedural implications. These responses argued that while the guidance is aimed at High Risk Buildings, owners of smaller buildings could attempt to use the process to rectify minor defects, absorbing a significant amount of verifiers’ time.

Two local authorities noted that other forms of redress, such as civil action, were available. For example, one suggested that a building owner could take action against a developer outside of a 10-year limit.

Singular considerations raised by organisations included:

• The challenge of establishing, over time, whether an issue is a defect due to the original construction or maintenance or amendment carried out at some point during the time limit. This respondent argued it could lead to multiple issues, including the value of the property being affected, insurance being invalidated, and owners being unable to sell their property until the defects were rectified.
• Clarification over who takes responsibility if a party involved in the original design and construction has ceased trading during the time limit.
• The potential higher costs for building owners if developers have increased insurance liabilities to ensure they are fully compliant and able to take remedial action over a longer period of time.