Building standards: procedural handbook (third edition, version 1.6)

1 General

1.1 Introduction

1.1.1. This handbook explains the procedures set up by the Building (Scotland) Act 2003 (the Act) and the Building (Procedure) (Scotland) Regulations 2004. The procedures are for building work to which the Scottish building regulations apply and for other matters covered by the Act, in particular those dealing with dangerous and defective buildings. (Chapter 2 of this handbook explains the application of the building regulations, and chapters 10 and 11 cover dangerous and defective buildings).

1.1.2. Any references within this handbook to the Building (Procedure) (Scotland) Regulations 2004, the Building (Scotland) Regulations 2004, the Building (Forms) (Scotland) Regulations 2005 or the Building (Fees) (Scotland) Regulations 2004 should be read as including any subsequent amendments in force.

1.1.3. The purpose of the handbook is to clarify the intent of the procedure regulations and expand on the procedures set up by the Act. Unlike the Technical Handbooks and most other guidance documents issued by Scottish Ministers to support the building regulations, this procedural handbook has no specific legal status, but is designed to aid the practical operation of the procedures.

1.1.4. The EU Directive on the energy performance of buildings (EPBD) has been implemented primarily through the Building (Scotland) Act 2003, but also through the European Communities Act 1972. This handbook only covers the matters that relate to the 2003 Act. For further information on the EPBD please refer to the BSD website at https://www.gov.scot/policies/building-standards/.

1.2 The building standards system in Scotland

1.2.1. The building standards system in Scotland is established by the Building (Scotland) Act 2003. The Act gives powers to Scottish Ministers to make building regulations, procedure regulations, fees regulations and other supporting legislation as necessary, to fulfil the purposes of the Act. The purposes include setting building standards and dealing with dangerous and defective buildings. The various regulations are made by Scottish Ministers, but must be approved by the Scottish Parliament before coming into force.

1.2.2. The system is intended to ensure that building work on both new and existing buildings results in buildings that meet reasonable standards. The standards are set out in the building regulations, which are, in the terms of the Act, intended to:

• secure the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings;
• further the conservation of fuel and power; and
• further the achievement of sustainable development.

1.2.3. The building regulations, and the supporting guidance documents on how to meet the regulations, are subject to scrutiny by the European Commission (EC) and the member states of the European Economic Area. This check is intended to ensure that where the regulations and guidance documents use technical specifications to describe materials or constructions, no barriers to trade in construction products are being created. This scrutiny procedure supports the EC Construction Products Regulation, which requires references to materials and construction methods in our regulations and guidance documents to be made in the terms used in European Standards for products and test methods. (The Regulation allows for the ‘harmonization’ of standards before they must be used. It took ten years or so for member states to agree the first harmonized standards but these are now being regularly produced).

1.3 Purpose of the building standards system

1.3.1. The purpose of the building standards system is to protect the public interest. It is not intended to provide protection to a client in a contract with a builder. The building standards system sets out the standards to be met when building work or a conversion takes place, to the extent necessary to meet the building regulations. 

1.3.2. The system is pre-emptive, designed to check that the proposed building work meets the standards. Inspections during construction and on completion are to protect the public interest in terms of compliance with the building regulations and to discourage avoidance of the legislation. The inspections do not provide a system to control work onsite. That is a matter for the contracts and arrangements put in place between the client and builder.

1.3.3. The roles established to operate the system are set out throughout the document. The role of checking compliance rests with verifiers and, in prescribed ways, approved certifiers. Enforcement is by local authorities. Updating is by the Building Standards Division (BSD) of the Directorate for Local Government and Communities of the Scottish Government, advised by departmental working groups.

1.4 Building Standards Division

1.4.1. Building Standards Division is part of the Directorate for Local Government and Communities in the Scottish Government. The division prepares and updates building standards legislation and guidance documents, conducting any necessary research and consulting on changes as the Act requires.  The division, on behalf of Scottish Ministers, gives views (see paragraphs at 4.2) to help verifiers make decisions in particular cases, and deals with applications to relax standards for particular matters. It also approves verifiers, and certifiers of design and construction (see paragraphs at 1.9) and it checks how verifiers (including local authorities) and certification scheme providers are operating the system. Finally, should it be necessary, Scottish Ministers can, through the division, take over the enforcement role of a local authority.

1.5 Process for reviewing building standards procedures and regulations

1.5.1. The Building Standards Advisory Committee, was abolished on 1 August 2010 as part of the Scottish Government’s commitment to reform public services. Following its abolition the functions are now fulfilled by BSD establishing informal departmental working groups operating on a non-statutory basis, thereby engaging with key construction industry stakeholders.

1.5.2. The intention of the working groups is to provide expert advice. Members may be representative of construction industry interests but are essentially selected for the specific expertise and knowledge they can bring. The selection will be made as and when working groups are required from a wide variety of bodies interested in the process of building.

1.6 Local Authority Building Standards Scotland

1.6.1. The Building Standards Division also works closely with Local Authority Building Standards Scotland which is an organisation representing all 32 Scottish local authority building standards services. Formal meetings are held on a regular basis and any problems or issues arising from the legislation and procedures or from common building practices are discussed at these meetings. Agreed guidance is produced, where possible, to aid common understanding and to encourage the effective operation of the building standards system.

1.7 Verifiers

1.7.1. The role of the verifier is to protect the public interest by providing an independent check of applications for building warrants to construct or demolish buildings, to provide services, fittings or equipment in buildings, or to convert buildings. Verifiers are appointed by Scottish Ministers.

1.7.2. The Act provides for a variety of verifiers should this be required, but at present the only appointed verifiers are the 32 Scottish local authorities, each covering their own geographical area. If Scottish Ministers decide to appoint private verifiers, then the regulations and procedural guidance will be amended.

1.8 Local authorities enforcement role

1.8.1. It is considered necessary to have an ongoing, independent body to enforce building legislation, with local knowledge and resources. The Act therefore provides for enforcement to be the responsibility of the local authority for the area in which the building work is taking or it has undertaken the verification role.

1.8.2. Any local authority choosing to contract out building standards work under the ‘best value’ regime must consider the technical work involved in enforcement. The local authority must be capable of dealing with the duties in part 3 of the Act relating to compliance and enforcement and in part 4 on defective and dangerous buildings.

1.9 Approved certifiers

1.9.1. The Act establishes a role for suitably qualified persons (whether individuals or bodies corporate or unincorporated and including public bodies and office-holders) as approved certifiers of design or construction. The appointment by Scottish Ministers, is to certify that specific elements of design or construction work comply with the building regulations.

1.9.2. Two roles are designated as approved certifiers of design and approved certifiers of construction. Approved certifiers are required to check the specified elements of design/construction, as set out within the scope of the scheme of which the certifier is a member and detailed within the relevant scheme guide. Their role is to certify compliance with the building regulations as appropriate. Further information on certification schemes may be found in the BSD ‘Certification Handbook’, which is available at https://www.gov.scot/policies/building-standards/

1.9.3. If satisfied that the proposed design meets the requirements of the building regulations, an approved certifier of design may issue a certificate for submission with the application for a building warrant. Approved certifiers must have due regard to compliance with all relevant building standards requirements, which may impact on the work undertaken, not just those of immediate relevance to the particular scheme. A verifier must, however, check that the person signing (the approved certifier) is registered by a scheme provider to certify in relation to the design aspects specified on the certificate. Checks must also be undertaken to confirm that the certificate has been counter-signed by a registered approved body. These checks are made using the online certification register (see 13.2).

1.9.4. Approved certifiers of construction must also have due regard to compliance with the full range of building standards, not just those applicable to the part of the building covered. They must investigate and be satisfied that the construction has been completed in accordance with the building regulations relevant to the building warrant application. When content that compliance has been achieved, a certificate of construction may be issued. The checks to be undertaken by the verifier mirror those set out at paragraph 1.9.3.