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

4 Role of Scottish Ministers

4.1 Interpretation

4.1.1. While definitive interpretation of regulations is the preserve of the Courts, Scottish Ministers have the power to give a view on the extent to which a proposed building or construction complies with the regulations. Also, most of the technical information related to the standards in the regulations is in the Technical Handbooks and other guidance documents issued by the Ministers and the BSD can interpret these. Informal advice on the content of the handbooks is available by telephone or e-mail but for a formal view on the extent to which a proposal complies with the building regulation standards the following procedure must be followed.

4.2 Reference to Scottish Ministers for a view

4.2.1. To assist verifiers and applicants for warrant in cases where there is doubt on whether proposals satisfy the regulations or whether continuing requirements need to be imposed as conditions of the warrant, Scottish Ministers may give a view on the matter. Verifiers must have regard to any view given when determining the application. It should be noted that a formal view will not be given on matters certified by an approved certifier of design.

4.2.2. Either the applicant for warrant or the verifier may choose to request a view. However, a view is only given if, in the words of the Act, the BSD (on behalf of Scottish Ministers) ‘think fit’. It will be regarded as unusual to give a view if only one party seeks to approach the BSD. The intention is not to act as an unofficial appeal mechanism but to assist where there is genuine doubt as to the extent to which a proposal meets the regulations.

4.2.3. A referral for a view should be emailed, or otherwise sent to the BSD. A response is given within 48 hours, stating whether the BSD is prepared to give a view, what the relevant fee is and when a response will be given. The timing depends on the nature of the query and whether sufficient information accompanies the referral. Only the minimum information and drawings need to accompany a referral but further details may be requested if thought necessary. Applicants must then confirm that they accept timescale and verifiers that they will pay the relevant fee. The BSD website will give details of the fee, which will vary on a case-by-case basis.

4.2.4. The BSD does not normally consult on their view as it is intended to be a fast response service. Where the opinions of other parties, for example Historic Environment Scotland, may be useful, consultation should take place before the BSD view is sought. If the BSD consider appropriate consultation has not taken place, the view can include a recommendation to the verifier or the warrant applicant to consult specifically on the matter.

4.2.5. A view is sent to both verifier and applicant. The verifier will be accompanied by an invoice. Where the BSD consider it may be useful, views are published more widely and can be found online at https://www.gov.scot/policies/building-standards/

4.2.6. Where approved certifiers of design are seeking advice on the extent to which proposals satisfy the regulations in terms of either the matters to be certified or their relationship to other aspects of design, the BSD may give advice but may charge a fee, depending on the extent of the work involved in considering the case. Unlike a view given by Scottish Ministers to a verifier and/or an applicant, a verifier is not required to have regard to this advice and a certifier is not obliged to present it.

Figure 3: Views

Process Of Obtaining A View From Scottish Ministers

Note

1. In practice the Building Standards Division will receive the reference and issue the view on behalf of Scottish Ministers.

2. Normally a reference will only be accepted if it comes from both parties.

4.3 Relaxations

4.3.1. For any particular building, a person may apply to Scottish Ministers for a direction to either relax or dispense with a provision of the building regulations. The building regulations designate certain provisions that may not be relaxed, although there is currently no designation in relation to the building standards themselves.

4.3.2. Where Scottish Ministers consider it unreasonable that the provision should apply to that building they may issue a direction. The direction may set conditions and a date for expiry. Any direction may also be revoked or varied by a further direction. There is no requirement to consult before issuing a direction in relation to a particular building but the fire service will normally be consulted for any question related to fire matters. If the application for relaxation relates to an existing warrant application and particularly where a warrant has been granted, the verifier will also normally be consulted.

4.3.3. The application should be made on the model form available from the BSD or online at https://www.gov.scot/policies/building-standards/. One copy of sufficient drawings, specification and other information to fully explain the case should accompany the application. The precise provision of the regulations which the applicant considers is not appropriate for the application must be identified. If the BSD requests, further information or test results (which the applicant must obtain at their own expense), should be submitted. With the agreement of the BSD, supporting information may be submitted electronically. Where the BSD consider it necessary, a copy of any related application for warrant must be forwarded by the relevant verifier. No fee is payable when making an application for a relaxation.

4.3.4. Normally a draft direction is sent to the interested parties, giving 21 days for representations against any aspect of the direction. A final direction is issued after consideration of the representations, if any, after the 21-day limit. Copies of the final direction are sent to the local authority. (Note, if alternative verifiers are introduced, every verifier authorised to deal with that type of building in that local authority area will receive a copy). Any other party that received the draft direction should also receive a copy of the final direction. The BSD will normally report the background to the reasoning on the decision.

4.3.5. There are differences between relaxations under the 2003 Act and those previously given under the 1959 Act. The new form of expanded functional regulation gives more opportunity for flexibility and most cases can be decided by verifiers by interpretation of the requirements in schedule 5 of the building regulations. A relaxation or dispensation is for cases where a requirement is clearly, in whole or in part, unreasonable for a particular building. There is an appeal mechanism, as applicants may challenge a decision of the BSD, in relation to relaxations, in the sheriff court.

4.3.6. Where a certifier of design applies for a relaxation, any direction given by Scottish Ministers must be submitted with the application for warrant or amendment to warrant. Where a certifier of construction applies for a relaxation, any direction given must be included with an application for an amendment of warrant.

Figure 4: Relaxations - Particular Buildings

Process Of Obtaining A Relaxation⁽¹⁾ For A Particular Building

Note

1. ‘Relaxation’ here includes complete dispensation of a standard.

2. Applications should be made on the model form.

3. The BSD carries out this procedure on behalf of Scottish Ministers.

4. Competence depends on whether the BSD considers the application relates to regulation that may be relaxed (the Act provides that some regulations may not be).

5. The direction may include conditions and/or continuing requirements.

4.4 Type relaxations

4.4.1. Scottish Ministers may also give a direction relaxing or dispensing with a provision of the building regulations for any description of building, i.e. a type relaxation. This can be given either on application by any person or by Scottish Ministers on their own behalf. The building regulations designate certain provisions that may not be relaxed, however, there is currently no such designation that affects the building standards. Before giving a direction BSD may consult any interested party.

The consultation will normally include Local Authority Building Standards Scotland, verifiers and local authorities. Fire and Rescue Service Scotland must be consulted on questions relating to fire.

4.4.2. The direction may set conditions and may set a date for expiry. Any direction may also be revoked or varied by a further direction, following consultation as in paragraph 4.4.1. Where an application for warrant has been made to which a type relaxation is applicable, the type relaxation continues to have effect for that application, even if the relaxation is revoked or ceases to have effect before the building warrant is issued or the building is completed. A type relaxation cannot automatically apply where a warrant application has already been made, but a verifier may take account of such a direction when deciding the application.

4.4.3. An application should be made to BSD using the model form available online at https://www.gov.scot/policies/building-standards/. One copy of sufficient drawings, specifications and other information to fully explain the case should accompany the application. The provision of the regulations which the applicant considers is unreasonable for the type of building in question must be identified. Following the initial application, BSD may require further information or test results (which the applicant must obtain at their own expense). Supporting information may be submitted electronically. No fee is payable when making an application for a type relaxation.

4.4.4. A draft direction is sent to the interested parties, giving 21 days for representations against any aspect of the direction. A final direction is issued after consideration of the representations, if any, or after the 21-day limit. Copies of the final direction are sent to every verifier. (Note, also sent to any local authority that is not a verifier, should that occur in the future). Any other party that received the draft direction should also receive a copy of the final direction. The BSD will normally report the background to the reasoning on the decision.

4.5 Type approvals

4.5.1. The 2003 Act does not make provision for type approvals. However a Scottish Type Approval Scheme is provided by Local Authority Building Standards Scotland. Anyone wishing to have a design approved for use on several sites, subject to checks on site-specific matters such as foundations, can apply to Local Authority Building Standards Scotland. See the website at https://www.labss.org/

4.5.2. This scheme allows more rapid and certain processing of applications by members of the scheme. At the time of publication, all local authorities are members and while this arrangement exists all local authorities approved as verifiers will recognise type approvals.

Figure 5: Relaxation - Particular Type of Building

Process Of Obtaining A Relaxation⁽¹⁾ For A Particular Type Of Building

Note

1. “Relaxation” here includes complete dispensation of a standard as it applies to a particular type of building.

2. Applications should be made on the model form (BSD1).

3. The BSD carries out this procedure on behalf of Scottish Ministers.

4. Competence depends on whether the BSD considers the application relates to regulation(s) that may be relaxed (the Act provides that some regulations may not be).

5. The process may be halted at this stage with no refusal notification issued.

6. ‘Interested parties’ in relation to draft direction consultations include applicant or duly authorised agent (if any), every verifier and any other person they think fit.

7. The direction may include conditions and/or continuing requirements.

8. In the case of a ‘type relaxation’ Scottish Ministers must send a copy of the direction to every verifier and local authority that is not a verifier.

9. A refusal would not be issued in the case of a relaxation initiated by Scottish Ministers.