Building standards enforcement handbook: first edition

5  Section 27 - Building Warrant Enforcement Notice

5.1 Context

Section 8 - Building Warrants, requires a warrant to be obtained for new construction work, a conversion of an existing building or the demolition of a building.

Section 8 confirms that it is an offence where:

• such work is carried out or being carried out without obtaining a building warrant, when one is required
• work that has a building warrant is carried out not in accordance with the warrant.

Section 14 - Building warrants for limited life buildings, requires a warrant for a limited life building, and may include a condition that the building is demolished by the expiry date stated in the application.

Section 14 confirms it is an offence where the owner of the building fails to demolish the building by the expiry period specified in the warrant or any extended period that has been approved.

5.2 Circumstances when a Building Warrant Enforcement Notice may be served

Where it appears to LAs that:

• work is being or has been carried out without a building warrant where a warrant is required
• work that has a building warrant is being or has been carried out otherwise than in accordance with the warrant
• a limited life building has not been demolished by the appropriate by the appropriate date.

They may serve a Building Warrant Enforcement Notice.

5.3 Content of the notice

The Forms Regulations, Form 10, Building Warrant Enforcement Notice for use by LAs when the owner, or relevant person, of a building requires to obtain a building warrant or submit a completion certificate.

The notice is issued to a named individual who is the relevant person of the building. Where the notice relates to a limited life building the notice is issued to the owner.

The action called for by the notice will:

• where work has been completed without a building warrant, require a Completion Certificate where No Building Warrant Obtained to be submitted by the relevant person to the verifier and secure its acceptance by the verifier
• where work is not complete, require the relevant person to apply for a building warrant.

In addition, the notice may also include a requirement that the work should be suspended, other than work for complying with the notice, until the notice has been complied with. The suspension takes effect as soon as the notice is served.

• Where work has been done not in accordance with the building warrant, require the relevant person to have the work made to comply with the warrant or, where necessary, obtain an amendment to warrant in respect to the non-compliant work.
• Where a limited life building warrant has not been demolished, require the owner to obtain a building warrant for the demolition and to demolish the building.

Procedure Regulations, Regulation 51 - Notices served by local authorities, requires that the particulars of the notice are 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.

5.4 Interdict

There are additional powers available to use for offences relating to the unauthorised occupation or use of a building.

The Act, in Section 21 - Occupation or use without completion certificates, gives LAs the option to make an "application for interdict, seek to restrain or prevent any actual or apprehended occupation or use of a building which constitutes, or would constitute an offence."

This is an offence where a person does so knowing, or without regard to the fact that a completion certificate has not been accepted by the verifier.

Similarly, under section 14 - Building warrants: limited life buildings where a person occupies or uses a building knowing, or without regard, to the fact that the period of intended life of the building has expired, LAs may make an application for interdict to restrain or prevent actual or perceived intent to occupation or use of the limited life building.

This application for interdict may be used irrespective of whether or not LAs propose to, or have used, the enforcement powers available to them.

5.5 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 requirements of the notice should be complied with 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.

5.6 Failure to comply with the notice

If the building owner does not meet the requirements of the notice then the local authority has the power to carry out the necessary work.

• Where the work is being carried out or has been carried out without a building warrant the work is that required to ensure the work undertaken complies with the building regulations.
• Where the work has not been carried out in accordance with the building warrant or a limited life building has not been demolished by the period of intended life, to ensure compliance with the notice.

LAs may recover reasonable expenses incurred as a result of undertaking the work. Expenses are recovered from the building owner as a debt.

A building warrant is not required for the work carried out by the LA. However, after completing the work, LAs must register a completion certificate on the building standards register certifying that the work has been completed in accordance with the building regulations or, as the case may be, in accordance with 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 local authority 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.

5.7 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. However, where the notice includes a requirement for the suspension of work, as explained above, the suspension continues to have effect unless quashed by an order of the sheriff.

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