Building standards enforcement handbook: first edition

3  Section 25 - Building Regulations Compliance Notice

3.1 Context

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.

Scottish Ministers have issued two directions under section 25; they are:

• Statement of Sustainability: This direction applied the requirement of Standard 7.1 to buildings going through the building warrant process in advance of Standard 7.1 taking effect.
• Improvement of Fixed Services: This direction calls for certain non-domestic buildings going through the building warrant process for alterations or extensions to improve the energy efficiency of fixed building services where such work did not form part of their proposals.

From the two examples above it can be seen that a direction under section 25 can be issued to local authorities that does not necessarily require a section 25 - Building Regulations Compliance Notice, to be served in order to achieve the desired outcome.

3.2 Circumstances when a Building Regulation Compliance Notice may be served

It is Scottish Ministers that determine:

• when a direction should be issued
• where it should apply (all local authorities or particular local authorities)
• to which buildings it applies and
• the provisions of the regulations that ought to be met.

The direction can only apply to buildings to which the building regulations apply. For example, a direction cannot be issued for exempted buildings under schedule 1 to Regulation 3.

3.3 Content of the notice

The Forms Regulations, Form 8 - Building Regulations Compliance Notice, is used by LAs when taking enforcement action.

The notice is issued to a named individual who is the owner of the building subject to the enforcement action.

The steps required by the building owner will be set out in the notice and will confirm what provision of the building regulations the building has to meet. The provision of the building regulations will be that set out in the direction issued by Scottish Ministers.

The issue of a building regulations compliance notice does not preclude the need to obtain building warrant approval if a warrant is required for the work.

After the completion of work required by the notice, a completion certificate must be submitted to the verifier. If the work did not require a building warrant, the completion certificate certifies the work has been completed in accordance with the requirements of the notice.

Regulation 51, Procedure Regulations - Notices served by LAs, requires that the particulars of the notice are recorded in the building standards register.

The LA may withdraw, waive or relax any requirement of a notice including the date specified for complying with the notice. The withdrawal of a notice does not affect the power of the LA to issue a further such notice. Where a notice is withdrawn, waived or relaxed the particulars of the notice shall be entered on the building standards register.

3.4 Key dates to consider

The action required to secure compliance of the building is controlled by the dates specified in the notice. There are three key dates that are set out:

• the date the notice takes effect
• the date the building must be made to comply with the provision of the regulations
• the date of the notice.

The date the notice takes effect must be at least 21 days after the date of the notice to allow time for an appeal to be made.

The date the building must be made to comply with the provision of the regulations must be at least 28 days after the date the notice takes effect.

If an appeal is made, the date when the notice comes into effect must be after the appeal is withdrawn or finally determined.

3.5 Failure to comply with the notice

If the building owner does not meet the requirements of the notice then the LA has the power to carry out the necessary work and recover reasonable expenses incurred as a result of undertaking the work. Expenses are recovered from the building owner as a debt. Further information on cost recovery is provided in chapter 13.

A building warrant is not required for work carried out by the LA when the building owner does not comply with the notice.

After completing the work, the local authority must register a completion certificate on the building standards register certifying that the work meets the provisions of the building regulations specified in the notice. The completion certificate to be registered is Forms Regulations, Form 7 - Completion Certificate for Local Authority Use. Accordingly, this completion certificate does not require 'acceptance' by the verifier.

Furthermore, the owner is guilty of an offence if they have not complied with the requirements of the notice. This may result in a summary conviction leading to a fine not exceeding level 5 on the standard scale.

3.6 Right of appeal

Any person aggrieved by the decision to issue an enforcement notice has the right to appeal to the sheriff. The appeal must be made with 21 days of the date of the notice.

Where an appeal is made, the requirements of the notice have no effect until the appeal is withdrawn or finally determined.

If the notice is quashed following an appeal to the sheriff, the particulars of the notice shall be removed from the building standards register.