Building standards enforcement and sanctions: consultation analysis

7. Section 48 - Penalties for offences

Chapter 7 reviews the proposed changes to section 48. This section outlines the penalties for offences applicable to work that does not meet building regulations, including offences by building owners, verifiers and certifiers of design and construction. The Scottish Government is seeking to increase the penalties for offences under section 48 for those involved with High Risk Buildings, to align the penalties with those applicable in England and Wales and provide the courts with flexibility in deciding fines. The proposed amendments are increasing the level of a fine to a maximum of £50,000, introducing a maximum two-year custodial sentence, and providing an option for a fine or custodial sentence.

There was widespread support for the level of fines proposed. Overall, 79% were in favour, with 72% of individuals and 84% of organisations agreeing. All organisation types agreed, ranging from 93% of local authorities to 67% of commercial organisations.

Open comments on the proposal were provided by three fifths of respondents, and these typically reflected the widespread support recorded in the closed question. While many of these comments were expressions of general support, several respondents called for penalties proportionate to the type of work or non-compliance in question. Some who expressed opposition in the closed question suggested in their open comment that they supported financial penalties but felt the proposed level of fines was too low to act as a deterrent.

Agreement with the proposal

The most prevalent theme in open comments was general statements of support for the proposed changes. Over half of those who agreed were responding from a local authority. They suggested that the fines for High Risk Buildings are currently too low, disproportionate to the offence which can often put the public at risk, and do not act as a deterrent.

Some respondents noted that they agreed with the proposal because it would align the regulations in England, Wales and Scotland, which they felt would increase clarity.

“The level of fines proposed appears consistent with the nature of the works being carried out. The newer fines system also allows for recognition of the risk some buildings represent to both builders and occupiers. Whilst not wanting anyone to be fined or jailed, the knowledge of more severe punishments for those involved in the building system should result in closer auditing and control over the works being carried out.” – Local Authority

Proportionate to the type of work

The second most common view, expressed by a mix of respondents who agreed and disagreed with the closed question, was that penalties should be scalable or proportionate to the work or non-compliance in question.

Some who raised this point agreed with the level of fines proposed in the closed question, noting that the proposed scale provided flexibility for a more severe fine based on the type of building development. An individual suggested that it should also relate to the property's value, i.e. the rateable value or the council tax bands.

In contrast, some others expressed support for scalable penalties but disagreed with the closed question as they thought £50,000 was too low to deter larger building projects from not meeting standards. An individual elaborated that larger developers should be subject to a higher fine, as the proposed maximum of £50,000 would be cheaper than employing a professional to oversee the quality of work on major developments i.e. they would rather incur a fine than take measures to ensure compliance.

Larger penalties

Some respondents disagreed with the closed question and advocated for larger penalties in their open comments. There were calls for higher maximum fines as respondents believed £50,000 was insufficient to deter non-compliance. Others suggested an unlimited fine.

One organisation left a detailed response which recommended that the outcome of the penalty should affect a developer’s ability to work on simultaneous or future projects.

“[We] believe that the level of fines introduced should act as an appropriate deterrent to ensure developers construct buildings in accordance with the Building Regulations. While it is for the Scottish government to determine an appropriate level of fine, some developers and owners will not consider a £50,000 fine to be a significant deterrent. In England, the fines form part of a wider set of deterrents, such as the ‘Responsible Actor’s’ scheme, and the developer’s pledge, which go towards encouraging better behaviour in the sector. The Responsible Actors Scheme in England means that offenders may be prevented from undertaking other works through either planning or building control until they have fixed the issues that have been found. While the implementation in England is not quite the same, the principle would be familiar to those developers who work across the border. This could also be extended not just to developers but owners as well. This would create three levels of sanctions and may offer the courts a higher degree of proportionality and as such support compliance.” – Professional/membership body

Other points raised

Two organisations agreed but urged for consideration of the impact of larger penalties on the commercial viability of projects, with increased insurance costs and more risk assessments needed for more complex projects.

An individual thought the penalty should be decided by a local authority rather than the courts, as they were concerned cases may be dismissed from court and penalties not collected. In contrast, an individual reiterated support for the court's power to decide on the level of penalty.

Other singular comments made by organisations included:

• Extending the penalties to include breaches of individual requirements imposed by local authorities, for example, non-compliance with stop notices.
• Introducing an inspection regime to help, educate and encourage builders may be more effective.
• Introducing a daily fine for owners who fail to meet the requirements of any notice.
• An organisation that disagreed with the proposals as they felt it would not solve current problems around planning.
• One disagreed that verifiers should be subject to the same penalty as those with primary responsibilities, such as the building owner or relevant person, and suggested that fines for verifiers remain at the current level. Conversely, a local authority argued that all parties involved in the process should be considered, including architects, designers, fire engineers, structural engineers, contractors, sub-contractors, and verifiers.

Very high levels of support were recorded for the option to include a custodial sentence. Overall, almost nine in ten (88%) of respondents agreed, with the same high agreement recorded by both individuals (89%) and organisations (88%). All types of organisations agreed, ranging from 93% of local authorities to 67% of commercial organisations.

Just over half of respondents provided an open answer in Q9. As with Q8, the high levels of support recorded in the closed question were reflected in open comments. The two most prevalent themes were general support for including a custodial sentence, and calls for the use of a custodial sentence to be proportionate to the seriousness of non-compliance. Only three respondents who disagreed with the closed question left open comments, arguing that a financial penalty and existing legislation are sufficient or expressing concern about the impact on verifiers; this latter point was also noted by a small number who supported the proposal.

Agreement with the proposal

One of the most prevalent themes was agreement with the proposal. A small number agreed without giving further information. Some others believed including a custodial sentence would provide a suitable deterrent to non-compliance, would be a useful and potentially stronger deterrent than financial penalties, and reinforce the seriousness of non-compliance. A few respondents caveated their agreement with specific points:

• An individual noted that the penalties would need to be acted upon by local authorities and the court system to be effective.
• A professional/membership body sought more information on what actions would justify a custodial sentence.
• Another professional/membership body requested clear guidance on who is culpable i.e., the occupant, developer, landlord or agent.

Proportionate penalties

Another equally prevalent theme was agreement with the proposal if the maximum penalty was proportionate to the level or nature of non-compliance. Many suggested a custodial sentence would be most appropriate, or should be kept for, the most severe offences that put building users at risk or for repeat offenders. An individual argued that anyone up to the chief executive of an organisation could be liable for a custodial sentence if they did not put compliance at the forefront of their company’s actions.

“Custodial offence is in extremis and should be kept for flagrant abuses and refusals to comply. It should be the end of a process that seeks rectification, and that process is met with intransigence, where there has been gross negligence or where there is evidence of repeated flouting of Building Standards.” – Commercial organisation

Capacity and training of verifiers

Concern was expressed by two who agreed and one who disagreed with the closed question about verifiers’ capacity and training to help implement the proposal in practice. These respondents argued that verifiers do not currently have the skills to collect and present the level of detailed evidence required to pursue a custodial sentence. Another individual suggested that, without training, the proposed penalties would be ineffective.

“This type of court action on the Planning side has been shown to be ineffective, due to a lack of training. The type of training with Police Scotland, which LABSS have developed, would be vital in ensuring this change is effective in practice.” - Individual

There was also a concern expressed by two local authorities that blame could fall on verifiers and that verifiers should not be subjected to a custodial sentence.

One professional/membership body noted that sufficient training and resources must be available to building professionals to ensure that ‘any action must be achievable by those who are duty bound to undertake it’.

Other points raised

Other issues raised in comments included:

• A professional body and a commercial organisation noted that legislation, particularly Health and Safety legislation already included penalties of custodial sentences for building failures and that this should be sufficient.
• Two respondents agreed that alignment with the Building Safety Act (2022) in England and Wales was appropriate.
• An individual disagreed with the proposal, stating that the fine is a sufficient deterrent.