Building standards enforcement handbook: first edition

10  Section 39 - Powers of Entry, Inspection and Carrying out Tests

10.1 Section 39 - Powers of entry, inspection and testing

Section 39 - powers of entry, inspection and testing, gives LAs powers to enter any premises in relation to action under sections 25 to 30.

Those powers are:

• inspecting any building, or site of any building, in connection with exercising their enforcement functions.
• carrying out reasonable tests on materials used, or proposed to be used, in connection with exercising their enforcement functions.
• carrying out work required by a notice served under sections 25 to 30 where the owner has not done so.
• carrying out work in connection with a dangerous building.

The owner and occupier of premises where enforcement action is being taken must give LAs assistance and provide information as they may reasonably require. If they fail to do so without reasonable excuse, or intentionally obstruct persons from inspecting the building or carrying out tests, they are guilty of an offence and liable on summary conviction to a fine not exceeding Level 3 on the standard scale.

10.2 Section 40 - Work required by notice: right of entry

Section 40 - Work required by notice: right of entry, gives powers for a person to enter a building where they are required to carry out work in relation to notices served under sections 25 to 30.

If the person does not occupy the building they must give the occupier reasonable notice before entering the building.

10.3 Using Powers of Entry - Section 39, schedule 4

Section 39 - Powers of entry, inspection and testing: further provisions, makes provisions for powers of entry. It confirms that where power of entry is required by LAs it must be at a "reasonable time".

In addition, LAs must give 3 days' notice of the intended entry to the occupier, and owner (if known). The Forms Regulations, Form 13 - Notice of Intention To Enter Premises, provides the template for notifying the occupier and owner of the date of inspection.

This notice must be served in accordance with section 37 - Service of notices (see previous section).

In a case where entry is a matter of urgency these timescales ('reasonable time' and 3 days notice) do not apply.

A person who enters any premises under section 39 can be accompanied by other persons and equipment as necessary. However, where access is to be gained through a warrant issued by the sheriff or justice of the peace, the terms of that warrant may set provisions in this regard.

Section 39 and schedule 4 make provision for a person entitled to enter premises must produce written evidence of that entitlement. The authority to enter premises, Form Regulations, Form 1 - Building Warrant, provides the template for this evidence.

10.4 Obtaining a warrant for entry - Section 39 and schedule 4

There may be circumstances where the local authority consider there may be difficulties in gaining access to premises, urgent access is necessary or prior notification of intending to access the premises would defeat the object of the proposed entry. The LA should seek advice from their legal team when determining the need to obtain a warrant for entry. In such circumstances the sheriff or justice of the peace may by warrant authorise the LA and any person authorised by it to access the premises including, if necessary, by force.

However, for a warrant to be issued, one or more of the conditions listed below must be met:

(a) that the exercise of the power in relation to the premises has been refused

(b) that such a refusal is reasonably apprehended

(c) that the premises are unoccupied

(d) that the occupier is temporarily absent from the premises

(e) that the case is one of urgency

(f) that an application for admission to the premises would defeat the object of the proposed entry.

A warrant will not be issued if only conditions (a) or (b) are met unless the sheriff or justice of the peace is also satisfied that notice of the intention to apply for the warrant has been given to the occupier of the premises, or that the giving of such notice would defeat the object of the proposed entry. The Forms Regulations provides a certificate that affirms this criteria has been met (Certificate to accompany application for warrant to exercise powers of entry, inspection or testing – Form 15).

LAs, when leaving, must secure the premises against unauthorised access to the same degree of security as prior to them gaining access.

10.5 Offences relevant to powers of entry

The owner and occupier, including any person on the premises, must assist and provide information to the LA as they require.

Where a person refuses or fails, without a reasonable excuse, to comply with the LA's requirement or intentionally obstructs a person carrying out the power under section 39(3), they are guilty of an offence and liable on summary conviction to a fine not exceeding Level 3 on the standard scale.

It is an offence for any person who has gained entry to the premises to disclose or make use of any commercially confidential information found therein.