Building standards enforcement handbook: first edition

2  Building Standards System

2.1 Building Standards System Overview

The building standards system in Scotland is established by the Act. 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 for construction work and conversions and dealing with dangerous and defective buildings. The regulations are made by Scottish Ministers, but must be approved by the Scottish Parliament before they come into force.

The purpose of the building standards system is to protect the public interest and it is intended to ensure that building work on both new and existing buildings results in buildings that meet reasonable standards. It also provides powers to local authorities to address buildings that are in a defective or dangerous condition.

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. The system is pre-emptive and designed to check that the proposed building work meets the standards. Inspections undertaken during construction and on completion by local authority verifiers are intended to protect the public interest to check 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.

2.2 Roles Overview

Verifier

The 32 LAs are appointed as verifiers by Scottish Ministers to administer the building standards system for their own geographic area. Their primary function is to protect the public interest by providing an independent check of applications for building warrant to construct or demolish buildings, or convert buildings. This includes checking during the design phase before granting a building warrant and checking during construction phase before accepting a completion certificate.

Relevant person - Building owner, tenant or developer

The relevant person is usually the owner, tenant or a developer who is doing the work for themselves, or who may employ a builder to do the work on their behalf or for the building owner.

When a building warrant is obtained, the relevant person is responsible for compliance with the building regulations. On completion of the work the relevant person must submit a completion certificate to the verifier. The completion certificate certifies that the work, or conversion, was carried out in accordance with the building warrant, and the building, as constructed or converted, complies with the building regulations.

Where the tenant or developer do not carry out their duties under the Act, the owner is ultimately responsible. The building owner is legally responsible for ensuring that all work complies with the building regulations and the local authority can take enforcement action against the building owner where this is not the case.

Local authority

The roles established to operate the building standards system are set out under the Act. The role of checking compliance rests with the verifiers and in prescribed ways certifiers. Enforcement is the responsibility of local authorities.

Local authorities are autonomous bodies under the Local Government (Scotland) Act 1973, and it is not the role of Scottish Ministers to intervene in enforcement matters. It is for LAs to determine the most appropriate course of action, taking into account the particular circumstances of each case.

Building Standards Division

The Building Standards Division is part of the Scottish Government. The Division prepares and updates building standards legislation and guidance documents, conducting any necessary research and consulting on changes as necessary. Updating of the legislation and supporting guidance is informed by collaboration with working groups comprising of experts from industry, academia and stakeholders.

Scottish Ministers approve verifiers, and certifiers of design and construction and the Division checks how verifiers (including local authorities) and certification scheme providers are operating the system.

Should it be necessary, Scottish Ministers can, through the Division, take over the enforcement role of a local authority.

Approved Certifiers

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.

2.3 Enforcement Powers Overview

The Act contains powers to enforce compliance with building regulations to secure the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings. These powers extend to furthering the conservation of fuel and energy and sustainable development.

While every effort to resolve issues will be made by LAs before taking formal enforcement action, they ultimately have legal powers to take enforcement action when they consider it neccessary and in the public interest. These powers will be used when a satisfactory outcome cannot be achieved through a collaborative approach between LAs and those persons responsible for the building, for example the relevant person/owner or developer.

Use of most enforcement powers in the Act is at the discretion of LAs. Decisions on whether or not to take action are based on a range of factors including the scale and/or circumstances of the offence. The exceptions are where the LA consider a building to be in a dangerous condition or where Scottish Ministers direct LAs to take action under section 25 of the Act. In such cases LAs must act.

2.4 Enforcement Provisions

Section 25 - Building Regulations Compliance Notice

Section 25 gives Scottish Ministers powers to require buildings of a particular description to comply with a provision of the regulations. The power is rarely used. However, where a direction is used, LAs may be directed to a serve a building regulations compliance notice on the owner of such a building.

This notice would call for the owner of the building to make the building comply with the provision of the regulations set out by Scottish Ministers.

Section 26 - Continuing Requirement Enforcement Notice

Section 26 gives LAs powers to serve a continuing requirement enforcement notice on the owner of a building. This is used when it appears to LAs that the building is failing to comply with a continuing requirement imposed on the owner.

The notice requires the owner to take steps to ensure compliance with the continuing requirement is achieved.

Section 27 - Building Warrant Enforcement Notice

Section 27 gives LAs the power to serve a building warrant enforcement notice on the 'relevant person' where:

• work that requires a building warrant has been or is being done without a warrant
• where a building warrant has been granted, the work is not in accordance with the warrant.

Section 27 gives LAs powers to serve a building warrant enforcement notice on the relevant person/owner where:

• a limited life building has not been demolished by the expiry period set out in the conditions of the building warrant.

The notice requires the relevant person, or owner as appropriate, to:

• submit a completion certificate and have it accepted by the verifier for work completed without a warrant
• obtain a building warrant for work being done without a warrant
• alter the building so that the work is in accordance with the warrant or obtain an amendment of building warrant for work not carried out in accordance with the warrant
• obtain a building warrant for the demolition of a limited life building and demolish it.

Section 28 - Defective Building Notice

Section 28 gives LAs powers to serve a defective building notice where a building has defects that require to be addressed to bring the building into a reasonable state of repair having regard to its age, type and location.

The notice requires the owner to repair the defects as set out in the notice.

Section 29 and 30 - Dangerous Building Notice

Sections 29 and 30 give LAs powers to serve a dangerous building notice where they consider the building presents a danger to people in or about it, to the public generally or to adjacent buildings or places. Enforcement action for dangerous buildings is not discretionary and a local authority has a duty to act to remove the danger.

LAs have a range of powers to carry out work to the building, including its demolition, to remove or reduce the danger to serving an enforcement notice on the owner. The notice requires the owner to carry out such works as is necessary to remove or reduce the danger.