Building standards enforcement handbook: first edition

Annex A

Case Study 1: West Lothian Council

The property

This report relates to a visit by Building Standards officers to a detached domestic premises at a property in West Lothian. This visit, followed a fire which Lothian and Borders Fire and Rescue Service had attended on 29 April 2012. The fire apparently started due to an incorrectly constructed chimney surrounding the flue of a free-standing solid fuel stove in the sitting room of the property.

At the time of Building Standards' visit on 30 April 2012 the fire had been extinguished and the ceiling and gable wall was part exposed showing the construction of the wall and chimney to the south wall of the sitting room of the property. The outer leaf of the cavity wall was constructed of 100 mm stone facing, with a 100 mm cavity between the stone and the inner leaf of the wall. The lower section of the inner leaf of wall up to approximately 2.4 m was constructed of a 147 x 47 mm timber frame which stopped either side of a free-standing concrete block panel with an approximate width of 1.1 m at the chimney. The upper section of the inner leaf of cavity wall, above this height, was constructed of a 147 x 47 mm timber stud partition.

The cavity between the inner and outer leaves was sealed with a cavity barrier to form a chimney. A single walled flue liner was installed partly in the cavity between the stone outer leaf and partly within the upper level timber inner leaf of the wall. During this inspection and through discussions with the owner it became apparent that the fire was as a result of the incorrect installation of a solid fuel stove.

Dangerous buildings notice

Following the fire, a section 30 Dangerous Buildings Notice was served on the owner of the property as appropriate through legislation the requirements of this notice were "to make safe and secure the fire damaged building". Serving a notice on the owner can assist in dealing with insurance; however it was not particularly helpful in this case as the owner felt that they had done nothing wrong, they simply bought a new house that had a completion certificate and an insurance warranty from a national warranty provider. This caused tension between parties.

Public interest

Given the outcome of the incorrectly installed solid fuel stove, Building Standards felt that to do nothing other than serve a Dangerous Buildings Notice was not fully serving the public interest. Therefore, in the hope that it could prevent a similar situation occurring it was felt that the public interest was best served by pursuing formal enforcement action. This enforcement action was initially aimed at the builder who carried out the work; however, during discussions, the Procurator Fiscal identified that the applicant, who was also the relevant person, should also be accused.

Registering a case with the Procurator Fiscal

In order to progress a case and submit that case to the procurator fiscal for consideration, any reports to the Crown Office and Procurator Fiscals Service (COPFS) can only be submitted by a specialist reporting agency (SRA). West Lothian Council is a specialist reporting agency and has been since September 2001. Most, if not all, Local Authorities are SRAs.

From 1 January 2006 SRAs can only report cases electronically to the Procurator via the COPFS secure website, SRAWEB. Procurators Fiscal will no longer accept cases reported in 'hard copy' paper form.

The report to COPFS, through SRAWEB, can only be submitted online from a dedicated PC via a secure connection by a SRA. Therefore, a dedicated PC had to be set up with secure access allowing cases to be submitted to the COPFS. For information, prior to a live report being submitted, there have to have been five full test cases submitted through the system to ensure that the SRA know exactly what is required and that the cases are submitted correctly to the live system. Any failure in providing correct information to the test cases means that the case fails and it has to be started again. COPFS provides specialist training on how they deal with SRA matters, however, this is infrequent, usually only once or twice a year and is heavily subscribed. This training, although helpful, is not mandatory and cases can be submitted through SRAWEB without undergoing the training.

In order to charge someone, there has to be a charge code which refers specifically to the section of legislation that you are charging the accused under already in the system. As there had been no previous cases under this piece of legislation a new charge code had to be created – this took just over three weeks to finalise and is done through COPFS.

In this case there were three charges and two accused with two of these charge codes for the builder and one for the applicant. In summary: 1 case – 2 accused – 3 charges.

The Integration of Scottish Criminal Justice Information Systems (ISCJIS) have created style offence charges, each with a unique charge code, which enables cases to be tracked and recorded throughout the system. These uniform charges and codes, details of which can be found on the ISCJIS website, must be used when reporting cases to the Procurator Fiscal. If no draft charge and code exist for an offence you wish to report, you can request that a new style charge be added to the system by contacting the Information Systems Division at COPFS.

Preparing the report

The parties involved had to be interviewed in order to prepare a report to COPFS. This required invitations to attend Council buildings for a formal interview under caution. The detailed report to COPFS includes information highlighting the issue that forms the basis of the case. In this instance this included the building warrant reference number, description of works, date the building warrant was granted for all stages and dates for completion certificate acceptance. It is also helpful at this stage to highlight the issue and include guidance from the Technical Handbook relating to the issue – in this case, guidance clause 3.19.4.

The following is an excerpt from the submission to COPFS:

• this report has been submitted due to the resultant serious nature of the fire which occurred as the construction of the chimney was not carried out in line with the approved warrant drawings or building regulations.
• this report relates to the failure of Any Builder Limited to take steps as the person carrying out the work to fulfil their statutory obligations as outlined in the Building (Scotland) Act 2003.
• this report relates to the failure of either Any Builder Limited or Example Developments Limited to take steps as the person on whose behalf the work is being carried out to fulfil their statutory obligations as outlined in the Building (Scotland) Act 2003.

The report to COPFS must include details of:

• the reporting officer. This is the person who is registered and submits the case from the secure PC
• witnesses and their designations
• location of the offence
• the date the offence was committed
• prosecution time bar. This is a standard 6 months from being made aware of the offence and is very important in progressing any case. The implications of this are set out later in the case study
• the offences. This is the contravention of the Building (Scotland) Act 2003 (the Act), in this case failure to ensure the requirements set out in section 8 sub-section 2 paragraph (b) were complied with. You must also include the part of the Act that you are referring to
• defences in law. At this stage you need to provide the actual defences in law the accused can consider, in this case paragraphs 4-9 of section 8 of the Act were noted.

Extract from section 8 of the Building (Scotland) Act 2003

(4) In any proceedings against a person referred to in subsection (3)(a) for an offence under subsection (2)(a), it is a defence for the accused to show that before the work was carried out or the conversion was made a person referred to in subsection (3)(b) or (c) had given the accused reasonable cause to believe that a building warrant had been granted for the work or the conversion.

(5) In any proceedings against a person referred to in subsection (3)(b) or (c) for an offence under subsection (2)(b), it is a defence for the accused to show that at the time of the alleged commission of the offence the accused did not know, and had no reasonable cause to know, that the work was being carried out or the conversion made otherwise than in accordance with the warrant.

(6) In any proceedings against a person referred to in subsection (3)(c) for an offence under subsection (2)(a), it is a defence for the accused to show that at the time of the alleged commission of the offence the accused did not know, and had no reasonable cause to know, that the work was being carried out or the conversion made.

(7) The accused is to be taken to have shown the fact specified in subsection (4) or, as the case may be, (5) or (6) if—

(a)sufficient evidence is adduced to raise an issue with respect to it, and

(b)the contrary is not proved by the prosecution beyond reasonable doubt.

In the report you must also provide anticipated lines of defence that all the accused parties may use and suggest rebuttals to these anticipated lines of defence. e.g.:

Defence. Any Builder Limited did not carry out these works, therefore the wrong person/company have been charged with these offences.

Rebuttal. The developer Example Developments Limited has identified that Any Builder Limited were appointed as main contractor for this project.

If part of the project was subcontracted Any Builder Limited as contractor is still the person on whose behalf the work is being carried out.

Defence. Example Developments is being victimised by the section.

Rebuttal. The completed construction resulted in a fire. It is not the intention of the section or its officers to victimise anyone. The section does have a duty to protect public health in West Lothian in relation to the built environment. It is in the public interest that builders are made aware that deviations from approved plans may have serious repercussions. Had the contractor constructed to the approved plans then this report would not have been necessary.

Charges

The report must include the charges levelled at each of the accused, e.g.:

"On 30 April 2012 at 10 Any Other Street, West Lothian, you John Smith being the Director of Any Builder Limited being person carrying out the work of a building, namely construction of, a building of a description to which the Building (Scotland) Regulations 2004 apply, did construct said building otherwise than in accordance with the warrant granted in terms of section 9 of the aforementioned Act, in that you did fail to construct a chimney in accordance with the approved warrant; CONTRARY to the Building (Scotland) Act 2003 section 8(2)(b)".

It must also must include for each charge the offences and penalties - this is taken from the Act:

Offences and Penalties

The Building (Scotland) Act 2003, section 48

48 Penalties for offences

(1) Subsection (2) applies to an offence under any provision of this Act other than sections 14(6), 21(5), 37(4), 39(6) and 43(1)

(2) A person guilty of an offence to which this subsection applies is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

The remainder of the report forms a background to the case setting out again the main issues and providing evidence in the form of what is termed productions. This included:

• details from Companies House to indicate the accused as directors of the companies
• photographs of the offence
• interviews held with the accused and
• statements from witnesses
• copies of approved plans
• building warrant and completion certificate.

Any officer involved in the enforcement case should provide a statement. The report should refer to all this information with references to individual productions that are relevant throughout the report.

Interviews with witnesses and the accused need to be carried out under caution. Invitation to attend interviews are sent recorded delivery and in this case two officers sat in on the interview one to scribe the other to carry out the interview. At the end of the interview the individual being interviewed was asked to read the notes taken and sign that it is a true reflection of the interview and this is used as evidence.

Similarly, evidence of any accused not attending for interview and any email correspondence/telephone calls relating to the matter should also be included at this stage. A list of productions must also be provided. (This case had 33 productions submitted in the report.)

Prosecution time bar

Note: Although as a SRA you submitted the case the decision whether or not to prosecute is one entirely for the PF. Before proceeding with a case, the PF must be satisfied by way of corroborated evidence

• that the case is within the jurisdiction of the court;
• that an offence has been committed;
• that the alleged offender committed that offence and is therefore liable to prosecution; and
• that there is sufficient evidence to prove beyond reasonable doubt both that the offence was committed, and by whom.

The criteria that the PF will consider are explained in the Crown Office and Procurator Fiscal Service Prosecution Code. This sets out the criteria for decision making and the range of options available to prosecutors dealing with reports of crime. When reporting agencies send the PF reports of crime, the PF will decide whether to begin criminal proceedings or whether to take alternative action.

The Procurator Fiscal's office advised in March of 2013 that as they could not find a registered address for the builder due to the company being wound up this had caused a delay which resulted in the time bar being exceeded and the builder would no longer be part of any case. This is why it is important to ensure the report is submitted ideally within 4 months of the offence to give COPFS time to charge the accused within 6 months if that is the decision the Procurator Fiscal takes.

Outcome of court case

The case was heard at the Sheriff Court by Sheriff X. The accused was the sole director of the development company (Example Developments). Two Building Standards officers gave evidence and in summing up the Sheriff noted that the information provided by both officers would not be in question.

It was never Building Standards' intention to see the developer be accused; however, the Procurator Fiscal advised this would be required. The developer had appointed a warranty provider, a project management company to look after the project and a main contractor – this was the developer's defence.

However, during the court case, minutes of a meeting were provided which highlighted that the developer who was also the relevant person knew an amendment to building warrant was required for a change to the ceiling construction but did not submit an amendment and subsequently submitted a completion certificate.

As a result of this, the developer was found guilty under section 8 2b of the Act Where such is carried out, or such a conversion is made in a case where a building warrant has been granted, otherwise in accordance with the warrant - as it had been proven the developer knew that the works had not been carried out in accordance with the warrant but still submitted a completion certifying that the works had been carried out in accordance with the warrant. Therefore, the stove issue was not the defining factor in the case – this ended up being a vehicle to take the case to court.

The preparation time involved in creating the case, gathering evidence and creating the report should not be under-estimated. An estimation of the time taken to create this case and attend court would be in excess of 100 hours for the service.

Issues to consider

• Consider if enforcement action is in the public intertest
• Register a user and PC with Specialist Reporting Agency
• Five trial cases to be put through the SRA
• Check if there is a charge code created (when a similar case been heard previously) as time is required to create a new one
• Evidence gathering and recording all conversations/meetings
• Prosecution time bar – 6 months from knowing about the offence
• Provide a sufficient report to allow the Procurator Fiscal to decide on whether to take the case to court.

Supporting colleagues

It is important not to underestimate and to acknowledge the effects this process has on the individuals working on the report. This includes attending court to give evidence (police interviews, carry out interviews of others under caution). Continued support from team members and management is crucial those Individuals involved during and after the case is completed will prove to be both beneficial and welcomed.

Case Study 2: Scottish Borders Council

The property

The property is a mid-terrace dwelling house in a terrace of four dwelling houses. The property is of traditional masonry construction for both the external and internal walls with a traditional slated roof on timber sarking and timber roof members.

The property was brought to the attention of the enforcement team by colleagues from Trading Standards following its advertisement for sale. The issues identified during the initial assessment were that a masonry wall had been taken down on the ground floor to create an open plan kitchen living space and that works had been undertaken to convert the attic to habitable accommodation.

The formation of the attic accommodation created habitable accommodation at 4.5 m, which would have implications for life safety, if a fire were to occur and also raised the potential for structural issues due to the alteration of the roof structure.

The enlargement of the ground floor area was considered to be a potential structural safety risk due to the removal of the masonry wall and the installation of a timber beam supporting the first floor joists.

When considering whether the evidence provided constituted unauthorised works and therefore further investigation, it was important to apply first principles and determine whether the works in question were exempt, works which do not require a warrant but must comply with the regulation or works which should be the subject of a building warrant. The works were considered against the provisions of the Building (Scotland) Act 2003 and the current Building Standards Technical Handbook - Domestic.

Having established that the works to convert the attic to increase the habitable accommodation should have been the subject of a Building Warrant (schedule 3 type 1 of Mandatory Regulation 5 the Technical Handbook), it was evident that unauthorised works had been undertaken. The removal of a load-bearing wall should have been the subject of a building warrant (schedule 3 type 1 of the Technical Handbook). The question was whether this wall was load-bearing. As the floor joists in the house run from front to back the floor joist in this area ran from side to side, it was not apparently evident if the wall was or was not load-bearing. Given that the floor joists ran in the opposite direction to the others on the first floor it was considered appropriate to treat the wall as load-bearing until otherwise proven. (If works had been undertaken at same time as other warrantable works this would also have required a building warrant).

The next stage in the investigation was to undertake a desktop survey using Uniform and other council assets to establish the history of the property and to check if a building warrant had been applied for covering the works in question. It was established that no building warrant was applied for.

An ownership search through the Land Registry and internal facilities was completed. The owner was then contacted and advised that the works to the attic would require a building warrant and that they would be required to submit a completion certificate to the verifier and secure the verifier's acceptance of the certificate. The owner was also advised that if the removal of the ground floor wall could be load bearing it would need to be covered by the same application.

Following the initial letter to the owner, various exchanges of correspondence and telephone calls took place over a period of several months. Initially, the owner was going to arrange for an engineer to confirm the status of the removed wall and submit the necessary application to regularise the situation.

Following further communications it was clear that the owner was not in a position to make the application. Given the nature of the works involved and the implications for safety it was determined that as the owner was not going to make the application, the Council would have to. The owner was advised that the Council would serve a Notice under section 27 of the Building (Scotland) Act 2003 to regularise the situation.

The Notice was served and subsequently became extant one month later. The Notice under section 27 of the Act required the recipient to "Obtain approval of a Building Warrant by the date specified on the Notice". A short compliance period was agreed with owner to allow the direct action to be progressed at the earliest opportunity.

Given that the owner was not in a position to comply with the terms of the Notice the Council's Architectural section was appointed to progress the necessary application.

Latest position

The Council Architect, accompanied by a structural engineer, attended the site and undertook a detailed survey of the property.

Once the plans had been prepared and the engineering advice considered, the Architectural section will submit an application for a Building Warrant to the Council's Building Standards Section to consider. At the same time as seeking the building warrant, the Council will obtain probable costs from an independent quantity surveyor (QS) to help in determining what would be the most cost effective solution to resolve the matter.

Once the application has been submitted and approved it is envisaged that the owner will be given the opportunity to undertake the necessary remedial works within an agreed period of time. In parallel with the owners undertaking the works the Council seek to recover the cost incurred in securing the building warrant approval.

If the owner is either unable or unwilling to undertake the works the Council will give consideration to the service of a subsequent Notice under section 27 to compel the owner to complete the works and secure a Certificate of Completion.

Action

The process that would be followed is set out below:

The Council's Architect would be appointed to take forward the direct action works. As part of the process they would create a design team for the project, comprising the Architects, clerk of works, quantity surveyor and an engineer if required. The design team would obtain a probable cost from the QS which would be used to determine the authorisation route. The enforcement team have approval in the Council's scheme of delegation to undertake direct action works up to £30,000 without the need for Committee approval. In cases where the costs of the works is under £30,000, authorisation would be approved by a senior officer.

If the probable cost exceeds £30,000 a report would be prepared and presented to the Planning and Building Standards Committee, and subject to approval being granted, the design team would be advised to proceed to the next stage.

The design team would take the approved warrant drawings and generate a bill of quantities and seek tenders from a minimum of three contractors. The team will assess the tender return and recommend a contractor based on quality and cost.

The owner would be advised on the ongoing position and be given an opportunity to undertake the works prior to the contractor being formally appointed.

If the owner does not confirm they would be undertaking the works, the contractor would be appointed and the design team would arrange a pre-commencement meeting to start the works. The design team would oversee the direct action works and confirm to the enforcement team when the works have been completed. A joint inspection with the design team would be undertaken and thereafter if all is satisfactory the Completion Certificate would be issued by the Council.

The design team would conclude the direct action phase and arrange for the final account to be prepared for the works. The enforcement team would apportion the cost to the parties served by the Notice and apply an administration charge to cover the cost incurred by the Council in delivering the direct action works (this does not cover the costs of the design team as they are to directly recharge to the owners).