Building standards enforcement handbook: first edition

4  Section 26 - Continuing Requirement Enforcement Notice

4.1 Context

Section 2 - Continuing Requirements, gives Scottish Ministers powers to impose continuing requirements on buildings, through the building regulations, as appropriate to secure and maintain compliance with the regulations. The use of continuing requirements to achieve any designated provision of the building regulations is unrestricted and may apply on a national basis to any building.

Section 22 - Imposition of Continuing Requirements, sets out when the verifier may impose continuing requirements on any building where it is considered necessary to ensure the purposes of building regulations are not frustrated. Continuing requirements arrangements are agreed to secure ongoing compliance with functional standards and can be imposed when granting or amending a building warrant or when accepting a completion certificate where no warrant was obtained.

The LA is responsible for the enforcement of continuing requirements whether imposed by Scottish Ministers or the verifier.

4.2 Circumstances when a Continuing Requirement Enforcement Notice may be served

Where it appears to a LA that the owner of a building is failing to comply with a continuing requirements imposed b the verifier for securing that the provisions of building regulations are not frustrated, they may serve a Continuing Requirement Enforcement Notice.

4.3 Content of the notice

The Forms Regulations, Form 9 - Continuing Requirement Enforcement Notice, is used by LAs when the owner of a building is failing to comply with a continuing requirement imposed on them by building regulations or by the verifier.

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

When preparing the notice, the LA specifies the continuing requirement in question and details the required steps to be taken by the building owner to secure compliance with the continuing requirement.

The Procedure Regulations, Regulation 51 - Notices served by local authorities, requires that the particulars of the notice have to be recorded in the building standards register.

LAs 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 LAs 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 Where a notice is withdrawn, waived or relaxed the particulars of the notice shall be entered on the building standards register.

4.4 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 continuing requirement
• 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.

On completion of the work required by the notice, a completion certificate signed by the relevant person must be submitted to the verifier certifying the work has been completed in accordance with the requirements of the notice.

4.5 Failure to comply with the notice

If the building owner does not meet the requirements of the notice then the LA has power to carry out the necessary work and recover reasonable expenses incurred as a result of doing the work. Expenses are recovered from the building owner as a debt.

After completing the work, the LA must register a completion certificate on the building standards register certifying that the work has been completed in accordance with the notice. The completion certificate to be registered is Form 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.

4.6 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 has 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.