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

2 Application of the building regulations

2.1 Building (Scotland) Regulations 2004

2.1.1. The Scottish building regulations are made under the powers in section 1 of the Act. The regulations apply to the design, construction or demolition of a building, the provision of services, fittings or equipment in or in connection with a building, and the conversion of a building.

‘Construction’ applies widely and includes alteration and extension as well as new building. Conversion however is restricted to prescribed changes of intended use or occupation (see schedule 2 of the building regulations). Where such a conversion is to be made, building work will have to be done so that all the relevant standards will be met, to the extent specified in schedule 6 of the building regulations.

2.1.2. Other than in relation to a prescribed conversion, the building regulations do not generally require existing buildings to be the subject of work or alteration until and unless the owner intends to do building work. However, there are ways that the regulations can require work when it is really necessary. One way is for continuing requirements to apply. A building owner can accept them as a condition when a building warrant is granted (section 22 of the Act), for example, a requirement to ensure continued access to allow the operation of a safety or maintenance device, such as a mobile platform to clean windows. Also, Scottish Ministers can impose continuing requirements on a particular class of building (section 2 of the Act), for example, requiring certain types of air conditioning systems to be inspected for the purposes of assessing energy performance (see paragraphs at 7.3 and 7.4).

2.1.3. A second way is for Scottish Ministers to require all existing buildings of a particular type to comply with a provision of the current regulations (section 25 of the Act). Local authorities will be directed to serve notices on the owners of all such buildings. This power is expected to be used rarely but can be used if particular problems come to light.

2.2 Guidance documents and compliance with the building regulations

2.2.1. The building regulations are expressed in terms of ‘functional standards’. These standards are statements of functions the completed building must fulfil or allow. For example, ‘every building must be designed and constructed in such a way that there will not be a threat to the building or the health of the occupants as a result of moisture penetration from the ground’. The intention is to permit a variety of ways of complying. In this example, the standard does not specify, for example, ‘the floor must have a damp proof membrane’, as this may not always be relevant. What is needed for compliance depends on the materials chosen, the site conditions, and the use of the building.

2.2.2. To give guidance on possible ways of complying, Scottish Ministers issue guidance documents through the BSD. The principal documents are the Technical Handbooks, one for domestic buildings and one for non-domestic. Proof of compliance with such a document may be relied on in any legal dispute as ‘tending to negate liability’ for an alleged contravention of building regulations. For most situations therefore it is expected that designing in accordance with the Technical Handbooks will be the usual way of showing that the functional standards are going to be met. However the verifier or certifier is judging against the functional standard and has the power to decide whether or not other solutions fulfil the requirement. This also allows judgement of where local site conditions, as mentioned in paragraph 2.2.1, or the construction or historical relevance of an existing building, may affect what is a reasonable way of fulfilling the standards (see paragraphs at 3.9).

2.2.3. One important alternative is the acceptance of solutions based on harmonised European standards and on technical specifications recognised in other member states of the European Economic Area where these provide equivalent or better standards of protection or performance.

The European Council of Ministers adopted the Construction Products Regulation (CPR) in February 2011 (following adoption by the European Parliament in January). The regulation (305/2011/EU) came into force on 1 July 2013 and replaced the Construction Products Directive (89/106/EEC). The regulation simplifies and clarifies the existing framework for placing construction products on the market. The new provisions in the regulation:

• clarify the use of ‘CE marking’;
• introduce simplified procedures to reduce costs incurred by enterprises (in particular small and medium-sized enterprises); and
• impose stricter designation criteria for bodies involved in the assessment and verification of the constancy of performance of construction products.

2.2.4. The six essential requirements of the Construction Products Directive have been replaced with seven basic requirements for construction works. This arrangement should assist in the evaluation of different standards for construction materials, tests and assemblies. It is, however, the applicant that must convince the verifier and must provide the verifier with translations of documents if necessary.

2.2.5. The BSD have also published numerous specialised guidance documents to assist compliance with building regulations. Documents cover different aspects of the building standards such as ‘Sound and Air-Tightness Testing’. All the documents are available on the Scottish Government website at https://www.gov.scot/policies/building-standards/

2.3 Exempt work

2.3.1. The procedures in this handbook do not apply in any way to building work and structures that are excluded from the definition of building in Section 55 of the Act.

2.3.2. However, work on buildings, services, fittings and equipment that is listed as ‘exempt’ in Schedule 1 of the building regulations is exempt only from regulations 8 to 12, i.e. those regulations imposing standards. Thus, such work, while neither required to meet a particular standard nor subject to warrant procedures, is still subject to the regulations about protective works or, under the Act, to the provisions for dangerous or defective buildings.

2.4 Work not requiring a warrant

2.4.1. The procedures for obtaining a warrant and submitting a completion certificate also do not apply to certain other defined types of work. Schedule 3 of the building regulations lists buildings and building work, including the provision of services, fittings and equipment that do not require a warrant.

2.4.2. The important difference from ‘exempt work’ is that this ‘work not requiring a warrant’ must still comply with the building standards set in the building regulations. Note, however, that Schedule 3 work is in three parts. The work listed in part A must meet the standards in full. Work listed in part AA is similar but this type must only meet the requirements of standards 1.1, 3.17-3.22, and 4.4. The work listed in part B is different and need only be done in such a way that the completed result does not make the relevant part of the building worse in relation to the standards. These works should also consist solely of operations falling into one or more of types 1 to 26 of Schedule 3. If it is intended to carry out additional works that require warrant approval at the same time as works specified in Schedule 3, the latter should also be included in the warrant application. The building warrant fee should be calculated taking all work into account.

2.4.3. Within Schedule 3, types 1 and 2 relate to certain building types, whereas types 3 to 26 are applicable to all building types, unless otherwise stated in the type description:

• Type 1 covers any work to or in a house with a storey height not exceeding 4.5 metres but only if the exceptions do not apply.
• Type 2 covers the following:

- Any work to, or in a non-residential building that members of the public do not have access to, with a storey height not exceeding 7.5 metres, but only if the exceptions do not apply.

- Any work to or in a building where a person may be legally detained or held, such as a prison, but only if the exceptions do not apply.

- A building, or any work to or in a building, or the conversion of a building that is the Scottish Parliament.

- A building, or any work to or in a building, or the conversion of a building belonging to Her Majesty in right of her private estates.

In all cases, except in respect of the Scottish Parliament and Her Majesties private estate the exceptions include, but are not limited to, structural work, work to a separating wall and alterations to roofs or external walls.

• Types 3-23 are wider and permit the specific item in every building, unless specifically indicated to the contrary in an exception. Therefore, types 3-23 can apply to a house which is not covered by type 1 because it has a storey above 4.5 metres.

Where the exception in type 1 says “work, not being work of types 3-26 below, to a house having a storey, or creating a storey, at a height of more than 4.5 metres” it means you can do any work allowed by type 1 in houses with no storey above 4.5 metres and anything in types 3 to 26 in any house.

Where the exception in type 2 says “work, not being work of types 3-26 below, to a building having a storey, or creating a storey, at a height of more than 7.5 metres” it means you can do work any work allowed by type 2 in a non-residential building to which the public do not have access with no storey above 7.5 metres and anything in types 3 to 26 in any such building. 

The phrase “and, without prejudice to the generality of types 1 and 2 above” preceding types 3-23 means that, even if something is not permitted by an exception in types 3-23, it may still be permitted by type 1 or 2.

The following gives examples of how these two qualifications work:

• Type 14 allows a stairlift to be fitted in any dwelling, without a restriction on storey height.
• Type 11 does not allow the installation of a WC without a building warrant but type 1 or type 2 do, though only in a house with no storey above 4.5 metres or in a non-residential building to which the public do not have access with no storey above 7.5 metres respectively. 
• Types 24-26 (Part B) apply to all building types and cover work closer to repair and maintenance than new work. It includes the replacement of fittings or services and partial replacement (not involving replacing the frame) of doors, windows or rooflights. This work is allowed without first obtaining a building warrant approval because it is likely to form part of a repair contract and repairs are not subject to the requirement to obtain warrant, provided the replacement materials are of the same general type as the existing.

From 1 July 2017, Schedule 3 includes a new building type 23A under part AA – On condition that this type in all respects and/or in the manner of their fitting meet the requirements of Standards 1.1, 3.17-3.22, and 4.4 of Schedule 5.

Type 23A covers a single-storey building, no more than 30 square metres floor area, used for shelter or sleeping in connection with recreation. This building type is different from other building types in Schedule 3 in that they must comply with the requirements of standards 1.1, 3.17-3.22, and 4.4. Exceptions are added to recognise galleries, proximity to buildings and boundaries. 

This is the first time buildings with sleeping accommodation have been included in Schedule 3. The main focus is to maintain public safety for people using and sleeping in these buildings.

Therefore, there are key legislative health and safety safeguards maintained for structure and the installation of combustion appliances that must meet the building regulations.

This type was added as a result of the Reforesting Scotland campaign to Scottish Ministers under “A thousand huts” where they campaigned “to celebrate, protect, expand and enjoy the world of hutting in Scotland “. Scottish Ministers agreed to concessions for huts in legislation (planning and building standards) to make them more affordable to build and in doing so may help them to become accessible to more people. 

Reforesting Scotland have produced a helpful Good Practice Guide see http://www.reforestingscotland.org/

2.4.4. It is intended that the BSD will issue separate guidance to assist those preparing work for which a warrant may not be required. Should owners seek further reassurance, it is not the intention that they should be able to apply for a warrant, as this could affect the efficiency of the system. Verifiers may consider issuing a letter to confirm that, on the information available to them, the work does not require a warrant. Additionally, if owners are seeking advice on whether the proposed work “not requiring a warrant” does meet the standards, verifiers may choose to offer such a service. This will be distinct from the warrant system and it will be for the provider of the service to determine reasonable charges. Other types of provider may also offer such a service.

2.4.5. Although Schedule 3 allows more minor works to be done without a warrant than previous legislation did, one effect of the 2004 regulations is to move certain building work from being completely exempt to being controlled by Schedule 3. That is, this building work must now meet the regulation standards, but does not require a warrant. Transitional arrangements allowed such work, which was small buildings and garages of 8 to 30 square metres and replacement windows (i.e. work falling within types 3 to 5 and 20 of Schedule 3) to be completed without meeting the standards provided construction was commenced on or before 1 June 2005, and was completed on or before 2 September 2005.

2.5 Crown buildings

2.5.1. From 1 May 2009, the Act applies to all Crown buildings with the exception of defence and security service buildings which includes all Ministry of Defence buildings. Provisions to allow Crown projects that have commenced prior to 1 May 2009 to be completed without the need to obtain building warrant have also been made. Full details of how the Act applies to Crown properties can been found in the separate guidance document “Procedural Guidance for Crown Buildings”. Determining the ‘ownership’ of a Crown building is done by reference to subsection 53(5) of the Act and the final decision as to who is the owner lies with Scottish Ministers.

Figure 1: Building Work

Procedures Applying To Different Types Of Building Work

Note 

1. A building warrant is not required for this work on condition that it meets the standards. If it does not meet the standards, a building warrant should have been obtained; therefore, a building warrant enforcement notice can be served.

2. A building warrant is not required for this work on condition that it is no worse than existing. lf it is worse, a building warrant should have been obtained, therefore, a building warrant enforcement notice can be issued.

3. A dangerous building notice may also be served if the works render the building dangerous to persons using or frequenting it or to adjacent buildings.