Building standards: procedural handbook - third edition version 1.7

10 Dangerous buildings

10.1 Introduction

10.1.1. Building owners are responsible for preventing their buildings falling into a dangerous condition. The powers given to local authorities by the Act do not diminish this responsibility but are merely a ‘safety net’ that must be used to protect the public when it appears to a local authority that, for whatever reason, a building owner has failed in their duty to fulfil this responsibility.

10.1.2. The powers available to the local authority can be applied to any structure that meets the definition of building within the Act. Thus, for example, these powers can be used on a building that has not been subject to the building regulations or the building warrant process (such buildings are detailed in schedules 1 and 3 of the Building (Scotland) Regulations 2004) if that building has fallen into a dangerous state.

10.2 Duty to act

10.2.1. Should a local authority become aware of a building that constitutes a danger to persons in or about the building, to the public generally or to adjacent buildings or places, then it has a duty to act (see section 29 of the Act).

10.2.2. The local authority must carry out such work (including, if necessary, demolition) as it considers necessary to prevent access to the dangerous building and to any adjacent parts of any road or public place which appear to be dangerous because of the state of the building. Any other work considered necessary for the protection of the public and persons or property in places adjacent to the dangerous building must also be carried out. This covers such matters as installing any necessary temporary shoring. Reasonable expenses may be recovered from the owner(s). A local authority entitled to recover its costs may make a charging order in favour of itself and register it in the appropriate land register (see 10.8).

10.2.3. Where the local authority considers that other urgent action is needed to reduce or remove the danger it may, after giving the owner such notice (if any) as the circumstances permit, carry out the necessary work and recover the costs from the owner. Again a local authority entitled to recover its costs may make a charging order in favour of itself and register it in the appropriate land register (see 10.8). In most cases, however, the local authority will serve on the owner a notice to do the work (see paragraphs at 10.3 to 10.5 below). Satisfactory management of dangerous building incidents by local authorities is essentially the result of appropriate risk assessment. Each dangerous building case should be dealt with on its own merits, as the local authority considers necessary.

10.2.4. There are a considerable number of factors which can influence the approach to be taken:

• the nature and/or severity of the danger (structural decay or damage, fire damage, impact damage, missing building safety features, loose parts of building elements or building fixtures, sudden subsidence, etc..)
• the physical proportions and nature of the building (low-rise, medium-rise, high-rise, spire or tower, viaduct, etc..)
• the geographical location (city centre, rural, remote, etc..)
• the location of the danger (internal only, internal but could affect whole building, external affecting curtilage of building, external affecting a public area, ease of accessibility to do the emergency work etc..)
• the extent of the danger (several affected buildings, only one building or part of building affected, several parts of one building element, or just one part etc..)
• the persons at risk from the danger (general public passing by, building occupiers, unauthorised persons frequenting the building etc..)
• the time of year and/or day (school holidays, public holidays, night time, rush hour etc..)
• the building owner(s) (finding the owner(s), the number of owners, the owner’s willingness to recognise danger and resolve matters, the financial/construction resources available to the owner etc..)
• the building occupier(s) (the occupier’s willingness to recognise danger, need to temporarily rehouse occupiers, disruption to occupier’s business etc..)
• the attendance of other statutory bodies at or permanent surveillance of, the dangerous building (police, fire service, security guards, etc..)
• the availability of emergency contractors (demand for other emergency repairs, public holidays etc..)
• the local weather forecast (high winds, flooding, period of calm etc..).

This list is provided to identify the main issues which surround dangerous buildings but is not to be considered as being exhaustive. For example, consideration of the historic status of the building is needed (see paragraph 10.3.1 below).

10.2.5. It is expected that local authorities will respond immediately to a report of

a dangerous building but they will have regard to the information that they are presented with at the time of the report. If a local authority considers that immediate access/entry to a dangerous building is essential due to the severity of the report received or after risk assessment that measures are required, no prior notice need be given to the owner(s) or occupier(s). If access/entry is refused or the property is vacant an authority may seek a warrant from a sheriff or justice of the peace to enter the premises.

The authority when leaving must secure the premises against unauthorised access, to the same degree of security as prior to them gaining access. (It would also be an offence for any person who has gained entry to disclose or make use of any commercially confidential information).

10.3 Establishing the danger and taking action

10.3.1. If the building is of an historic nature (this information can usually be obtained from the planning section of the local authority) consultation must take place with:

• Scottish Ministers (Historic Environment Scotland should be informed)
• the planning authority (particularly where the planning authority is not the local authority, such as in a national park)
• and such other persons as the local authority see fit before serving a notice or carrying out work. There is a single qualification of this need to consult.

10.3.2. When serving a dangerous building notice or carrying out urgent work under section 29(3) of the Act, the consultation is required only if reasonably practicable. It is however still good practice to limit the action taken in relation to a historic building to the minimum needed to protect the public until the proper consultations have taken place.

10.3.3. In many instances the danger presented by a building is easily established. Depending on the degree of risk and the simplicity of remedial work it may be possible for the local authority to negotiate a solution with the building owner without taking formal action. For the local authority to consider such an arrangement it is imperative the owner agrees at once and confirms as appropriate to the local authority that they will immediately arrange to undertake the measures required. The advantage with this approach is an owner should be able to arrange either temporary or permanent solutions in the time it would take an authority to effect only emergency work, using the normal notice procedures etc.. However, an owner that fails to achieve the negotiated solution can expect the local authority to take action swiftly.

10.3.4. In some cases the action of the local authority may involve the serving of a dangerous building notice (see paragraphs at 10.4 below) and no immediate action may be necessary e.g. where the building is unoccupied and adequately isolated from the public. In most instances however some emergency work will be needed to prevent access to the building, for example, security fencing, or to carry out temporary work, for example, shoring, and perhaps permanent work, for example, repairs to reduce/ remove the danger. In some cases partial or total demolition work may be done by an authority where this is the only appropriate solution. Reasonable expenses incurred for any such work may be recovered from the building owner(s). A local authority entitled to recover its costs may make a charging order in favour of itself and register it in the appropriate land register (see 10.8).

10.3.5. In some instances the degree of risk cannot be established except by instigating further exploratory work on the building, using either the resources of the local authority or subcontracting the work to a specialist. Enabling equipment or work will sometimes be necessary and again reasonable expenses incurred for this may be recovered from the building owner(s). Again a local authority entitled to recover its costs may make a charging order in favour of itself and register it in the appropriate land register (see 10.8). Note that preliminary/investigative work can incur considerable expense where, for example, scaffolding or a mobile access platform is hired. Where possible such enabling work should be used to remove the danger, whether completely, partially or temporarily, as considered appropriate by the local authority.

10.3.6. Where there is to be a delay in establishing the extent of the danger, it is appropriate for the authority to undertake work to mitigate possible effects, for example, by erecting temporary barriers to restrict access. Again reasonable expenses may be recovered for such emergency work.

10.3.7. Where work is undertaken by a local authority (see 10.2.2 and 10.2.3 above) no warrant is required. Work undertaken by an owner in response to a notice also does not require a warrant, so a notice can therefore be an advantage in certain circumstances e.g. where a home owner has lost their home through no fault of their own, say in a gas explosion. In all cases, however, the work must be recorded in the building standards register held by the local authority. A local authority must also register a completion certificate when work is complete, even though a warrant was not required.

10.3.8. A notice is not required if the emergency work completely removes the danger with a long-term solution, however, if a part of the building is still dangerous a notice must be served. If the building is merely defective after the emergency work however, a defective building notice may be sufficient (see chapter 11 below).

10.4 Dangerous building notices

10.4.1. The prescribed form 12 contained within the Building (Forms) (Scotland) Regulations 2005, as amended, should be used. In cases where there are multiple owners of a building, each owner or set of joint owners must receive a notice. The notice contains the following information:

• the name and address of the owner
• the address of the dangerous building
• a list of any co-owners and their addresses
• the commencement date for remedial work (appropriate timescale set by authority)
• the completion date for remedial work (appropriate timescale set by authority)
• the dangerous aspects of the building
• the work necessary to comply with the notice, including any protective works and specialist supervision required and offering options where possible, for example, repair or demolish
• notes on right of appeal
• a warning on the consequences of failing to carry out the stipulated works.

10.4.2. Optional information might be:

• guidance notes for owners receiving a notice, including procedures for obtaining a building warrant if other work is to be done at the same time as the remedial work
• guidance on the follow-up procedures that will be adopted by the local authority
• location plan of the building.

10.4.3. Copy notices must be served on the occupiers of the building if they are not the owner(s).

The local authority must also serve a copy notice on any other person appearing to have an interest in the building. Procedures for serving notices can be found in the Local Government (Scotland) Act 1973.

10.4.4. Where the local authority is the owner or a co-owner of a dangerous building, the notice should be served on the chief executive of the authority, as the representative of the owner.

10.4.5. Consideration should also be given to advising the fire authority of the dangerous building.

This is particularly important where the structure of the building has been weakened to the extent that the building would not behave as expected in a fire situation. Notification is not necessary when the fire authority has been involved in taking any emergency action in connection with the building.

10.4.6. An owner may appeal to the sheriff within 21 days of the date of the notice and this delays the effect of the notice. There is no further right of appeal against the decision of the sheriff.

10.4.7. If circumstances change after a notice has been served, for example, to a situation that requires urgent action, a notice may be withdrawn or any aspect waived or relaxed, allowing the authority to take urgent action. Notice of such a change is required before action only if reasonably practicable.

10.4.8. Although no warrant is required for work specified in the notice it must be recognised that any additional work may require a warrant. On completion, the work and any completion certificate required must be recorded in the building standards register.

Figure 12 Dangerous Buildings

Note

1. If the building is of an historic nature, Historic Environment Scotland, the planning authority and any other persons that the LA thinks fit, should be consulted (if time permits).

2. The dangerous building notice is served on the owner of the building and recorded in the building standards register.

3. Owner may appeal to the sheriff against the requirements of the notice.

4. Completion certificate is registered in the building standards register.

5. Local Authority may recover reasonable expenses from the owner or by compulsory purchase if the owner cannot be found.

6. A local authority entitled to recover its costs may make a charging order in favour of itself and register it in the appropriate land register (see 10.8).

10.5 Failure to comply with a dangerous building notice

10.5.1. Where an owner has not fulfilled the requirements of a notice, the owner is guilty of an offence. In these circumstances the local authority can carry out or complete the necessary work and recover from the owner any expenses reasonably incurred. A local authority entitled to recover its costs may make a charging order in favour of itself and register it in the appropriate land register (see 10.8). Most cases should, however, be dealt with to avoid this outcome.

10.5.2. There may be a variety of reasons why failure to comply is likely, particularly where a number of owners are involved. Although a prior notification before serving a notice is no longer required, in many cases it could be useful to indicate the intention to issue a notice. The owners could be given the opportunity to show why the notice might not be reasonable or how they intend to handle the situation. If representations are received, the owners may be invited to a meeting, which could involve building standards surveyors. Anyone with an interest in the dangerous building or adjacent buildings or that is an associate of the building owners, occupiers or other interested persons, should declare that interest at such a meeting.

10.5.3. A meeting is an opportunity to get the owner/mutual owners together to impress upon them both the reasons why action will be taken and that looking after the property is their (joint) responsibility. The meeting may result in a decision to give the owner(s) more time to do the work or the local authority may decide just to issue the notice. The authority may, at any time in the proceedings, withdraw the intention to serve the notice. If a notice is not served, the local authority has the power to issue a future notice.

10.5.4. If the notice, when served, is not complied with, the local authority may decide to carry out the work. The owners should be informed of the date when the contractor will start the work and of any matters that require to be addressed by the owners prior to the start, for example, removal of fittings to allow work to proceed unhindered.

10.5.5. Where the owner of a dangerous building does not occupy the property, the Act (section 40) gives the person on whom the notice was served the right to enter the property for the purpose of compliance with the terms of the notice. This right extends to any surrounding land held in connection with the building. Reasonable notice must be given before exercising this right of entry. Where access is needed to adjoining land owned by others, it will be necessary to negotiate such access legally (this does not affect a local authority’s right to enter any property to carry out emergency work).

10.6 Evacuation of dangerous buildings (including notice to remove)

10.6.1. There may be circumstances where it is not possible for the owner or the local authority to carry out emergency works sufficient to enable the occupants of a dangerous building or those of adjacent buildings to remain in occupation. In some instances the nature of the work may prevent the occupiers from remaining in the building, for example, demolition or stabilisation using tied-through scaffolding. Where this occurs the local authority must require the occupants to remove immediately and can apply to the sheriff for a warrant for ejection if the occupants refuse to remove or re-enter the building (see paragraphs 10.6.3 to 10.6.6 below).

10.6.2. The requirement to remove should be in writing and must state the reason for the requirement and the time by when the occupants must remove from the building. This applies in relation to work arising from a dangerous building notice as well as emergency work. A copy of the notice should be sent to the owner of the building where the owner is not also the occupier.

10.6.3. If an occupant fails to vacate a dangerous building or an adjacent building when required by the local authority a warrant may be sought from the sheriff for the ejection of the occupant. If the occupant is required to move immediately the warrant can be applied for at any time. If, however, the notice to remove specifies a time period, the warrant can only be applied for when that time period expires. The application to the sheriff must include a certificate (Form 15 of the Building (Forms) (Scotland) Regulations 2005) confirming that the occupant will be exposed to danger or has the potential to be exposed to danger, as a result of the dangerous building or the work proposed to the dangerous building (including demolition). The sheriff may require the service of a notice in terms of schedule 5(4) of the Act but this is in addition to any notice already served by a local authority in terms of section 42. A copy should be sent to the sheriff.

10.6.4. Where a local authority intends to carry out work to draw a dangerous building notice to a conclusion and they consider that the occupant may be endangered by such work, the sheriff may grant a warrant of ejection. In any other case the sheriff must grant a warrant for the ejection of the occupier within seven days of the application or if a notice is required under schedule 5(4), within seven days of the date of the notice. There is no right of appeal against the sheriff’s decision.

10.6.5. Paragraph 8 of schedule 5 advises the sheriff that the information contained in the certificate accompanying the application for a warrant to eject is sufficient evidence of the facts in the certificate. Paragraphs 9 to 11 of the schedule give rights to tenants in relation to maintaining their tenancy agreement and non-payment of rent during the time that they have not been able to occupy the building.

10.6.6. Under section 43, it is an offence for a person who has been evacuated/ejected from a building in accordance with section 42 and/or schedule 5 to thereafter occupy the building. However when the need for occupants to vacate buildings has passed, the local authority must give notice, in writing, that occupation may resume.

10.7 Recovery of costs

10.7.1. A local authority may recover from the owner of a dangerous building any expenses reasonably incurred in carrying out work in relation to the building, except as explained in paragraphs 10.7.2 below. The normal methods of debt recovery apply, except as explained in paragraphs 10.7.3 and 4 below. Also from 24 January 2015, when a local authority has carried out such work, a local authority may make a charging order and register it in the appropriate land register to help them recover their expenses (see 10.8 Charging Orders below).

10.7.2. Where a demand for payment is made by a local authority in relation to work on a dangerous building, section 44 of the Act may limit the amount payable. It depends on both the interest that the person has in the building and the resources available but is limited to trustees, liquidators etc.., as listed in section 44(2)(a). Section 44 also advises that summary application can be made to the sheriff where a person considers that costs incurred or to be incurred by a dangerous building notice should be borne to any degree by another person with an interest in the building. The sheriff may make an order and there is no right of appeal against the sheriff’s decision.

10.7.3. A local authority may use section 45 of the Act if it has incurred expense but cannot find the owner to recover the costs. The local authority can seek authorisation from Scottish Ministers, via the BSD, to compulsorily purchase the building and/or its site. The costs not recovered may be offset against the compensation that would normally be payable as a result of compulsory purchase.

10.7.4. Where a dangerous building is demolished by a local authority, section 46 of the Act permits the authority to sell the materials arising from the demolition. The local authority may offset the proceeds of the sale against the sum to be recovered. Any surplus must be accounted for to the owner or any other person having an interest in the building.

10.8 Charging Orders

10.8.1. When a local authority undertakes work in relation to compliance or enforcement, or in relation to a defective or dangerous building, it may recover any expenses reasonably incurred and normal methods of debt recovery apply. The 2003 Act was amended on 24 January 2015 by the Building (Recovery of Expenses) (Scotland) Act 2014 to improve these cost recovery powers and further help local authorities recover their expenses.

10.8.2. The charging order provisions in sections 46A to 46H of the 2003 Act cover work and expenses recoverable by a local authority in relation to a notice served under sections 25-30, or urgent action undertaken on a dangerous building under section 29(3), from 24 January 2015. The notices are a Building regulations compliance notice, a Continuing requirement enforcement notice, a Building warrant enforcement notice, a Defective buildings notice and a Dangerous buildings notice.

The charging order provisions supplement normal methods of debt recovery and allow the local authority to make a charging order and register it in the appropriate land register. This means either registering in the Land Register of Scotland or recording in the Register of Sasines.

A local authority entitled to their recoverable expenses under sections 25- 30 (qualifying expenses) are also entitled to the registration and administration fees associated with the charging order and its discharge, and interest at a reasonable rate.

When a local authority makes a charging order it must register it in the appropriate land register.

They must serve a copy of the charging order on the owner(s) of the building concerned and advise them of the effect of the charging order and the right of appeal. The charging order will specify the building concerned and the repayable amount. The local authority can determine the most appropriate number of annual instalments between 5 and 30 and the date for payment of each instalment which, will be set out in the charging order.

Although the charging order sets out annual instalments, the owner can repay the full amount at any time. The local authority may also agree a lower settlement sum with the owner if they choose.

When the outstanding amount has been paid, the local authority must register the discharge of the charging order in the appropriate land register.

An owner can appeal a charging order in the same way as the other decisions and notices in the 2003 Act, that is within 21 days of being made. The local authority can register the charging order immediately they have made it even though it does not come into effect until the 21-day appeal period has passed, or if an appeal is made, the appeal has been determined.

The charging order provisions are also designed to help prevent owners from transferring ownership of their building to avoid their liabilities, and help prevent owners using the appeal mechanism as a stalling tactic. If a new owner acquires right to the building 14 or more days after registration, both the new and former owners will become severally liable.

Standards forms for a charging order and a discharge of a charging order are set out in the Building (Scotland) Act 2003 (Charging Orders) Regulations 2014, together with details of notification of the making of a charging order.