Acts of the Scottish Parliament

2003 Chapter 8

© Crown Copyright 2003

These notes relate to the Building (Scotland) Act 2003 (asp 8) which received Royal Assent on 26 March 2003

BUILDING (SCOTLAND) ACT 2003

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The Act sets out the framework for a new building standards (formerly building control) system in Scotland.

EC Construction Products Directive

4.     Directive 89/106/EEC of the Council of the EC of 21 December 1988 established a framework for market harmonisation in construction products within the European Union. This framework was implemented in the United Kingdom by the Construction Products Regulations 1991.

5.     The Directive as implemented in UK legislation by the 1991 Regulations requires that technical specifications set in the UK make use of harmonised standards issued by Europe. This means in Scotland that where building regulations cite a British Standard for a construction product or test method, it will have to be replaced by one or more European standards when they are produced. The provisions which make it easier for the Scottish Ministers to comply with these requirements are described below in relation to section 1.

Building standards system

6.     The Act replaces the Building (Scotland) Act 1959 (the 1959 Act), which deals in the main with the setting of building standards, compliance with and enforcement of those standards and powers in relation to dangerous buildings. The standards themselves are prescribed in regulations, supported by technical standards for compliance with these regulations.

THE ACT - AN OVERVIEW

7.     The Act retains the general framework of the 1959 Act though some of the procedures involved in the building standards process are changed to make them simpler and to reflect existing practice. The hierarchy of building regulations is amended to simplify compliance with European obligations as described below. Local authorities' powers in relation to entry and inspection are altered with a view to making the identification of dangerous buildings easier. Provision is made for more information to be made available publicly on building warrant applications and completion certificates in relation to specific buildings. The Act provides for approved designers and approved persons or bodies involved in the construction process to certify that elements of a building do or will comply with building regulations. Ministers are given power to appoint bodies other than local authorities to undertake the role of verifying compliance with building regulations.

8.     The Act is in six parts:

• Part 1: Building regulations

• Part 2: Approval of construction work etc.

• Part 3: Compliance and enforcement

• Part 4: Defective and dangerous buildings

• Part 5: General

• Part 6: Supplementary

PART 1: BUILDING REGULATIONS

Section 1: Building regulations

9.     Section 1 establishes the power of the Scottish Ministers to make building regulations. Subsection (1) sets out the broad purposes for which regulations may be made and also the matters for which the regulations may provide. Those purposes include, for example, accessibility and usability of buildings. Schedule 1 makes further provision about the matters for which building regulations may provide.

10.     Section 1 makes it easier for the Scottish Ministers to meet their obligations under the EC Construction Products Directive in relation to recognition of harmonised European standards. Under the 1959 Act, the technical standards (the equivalent of guidance documents under section 4 of the Act) which accompany building standards regulations also have mandatory force and this severely restricts the ability of Ministers to update regulations and technical standards as each new harmonised European standard is produced, within the timescales set out in the Directive. Under the 2003 Act, it is only building regulations which have mandatory force and not the guidance which might accompany them (see sections 4 and 5). This will enable European standards to be specified in the guidance without having to go through the formal procedures of consultation and parliamentary process for each new European standard required under the 1959 Act.

11.     Subsection (2) places a duty on Ministers to consult before making building regulations or an order under subsection (4) modifying paragraph 5(2) of schedule 1. They must consult the Building Standards Advisory Committee, which was established by the 1959 Act and the continuation of which is provided for by section 31 of the Act. They must also consult other persons appearing to them to have an interest.

12.     Subsection (4) gives Ministers the power by order to alter paragraph 5(2) of schedule 1, which lists particular matters for which building regulations may provide.

13.     Subsection (5) gives Ministers the power to modify any enactment (whether in an Act or in subordinate legislation) which makes provisions which are inconsistent with a specific building regulation. Such enactments may also be modified if they become unnecessary or require alteration as a result of a building regulation.

14.     The parliamentary procedures for building regulations and for orders under subsections (4) and (5) are set out in section 54.

Section 2: Continuing requirements

15.     Subsections (1) and (2) give the Scottish Ministers the power to impose continuing requirements on building owners through building regulations, so that the purposes of particular provisions of building regulations are not frustrated once work on a building has been completed and the completion certificate accepted.

16.     Subsection (3) makes it clear that a continuing requirement cannot apply to a particular building unless the building regulation which the requirement is designed to protect applies to the building.

17.     Subsection (4) provides that continuing requirements may be imposed by building regulations in relation to buildings of such description as the regulations may specify and to existing buildings, even where the relevant building regulations did not apply to them when they were built. An example of a continuing requirement might be that a sprinkler system must be tested and maintained periodically.

Section 3: Relaxation of building regulations

18.     This section allows the Scottish Ministers to dispense with or relax any provision of building regulations in relation to a particular building or description of building where they think that its application is unreasonable. For example the requirement to provide access for a fire engine might be waived on a remote island where there is no fire engine.

19.     Subsection (2)(a) provides that Ministers may give a direction dispensing with or relaxing building regulations in relation to a particular building where any person makes an application to them. Applications are not restricted to owners, so, for example, a prospective buyer may apply for such a direction. In this case, the direction applies only to the specific building. Subsection (6) provides that Ministers must send a copy of any such direction (or any direction varying or revoking such a direction) to the relevant local authority and to all verifiers authorised to exercise functions in relation to that building or other buildings of that description in the area of the relevant local authority.

20.     Under subsection (2)(b), even if an application has not been made, Ministers may give a direction. In this case, the direction applies to a description of building. This is the equivalent to the provisions of the 1959 Act allowing Ministers to grant class relaxations, which deal with products or building types which are suitable for general use but, for whatever reason, do not comply with the existing standards.

21.     Subsection (3) provides for the possibility that regulations under the Act may restrict the Scottish Ministers' ability to give directions dispensing with or relaxing a provision of building regulations. Where such regulations state that, in relation to a provision of building regulations, a direction dispensing with or relaxing that provision is not competent, no such direction may be given.

22.     Before giving, varying or revoking a direction in relation to a description of building, Ministers must consult the Building Standards Advisory Committee and other interested persons, e.g. fire authorities (subsection (5)). Subsection (7) provides that Ministers must provide a copy of such directions to all local authorities and all verifiers.

23.     Subsection (8) makes provision for the case where a direction ceases to have effect, or is varied or revoked, while an application for a building warrant is pending.

24.     Subsection (9) provides that when dealing with a building or description of buildings in relation to which regulations have been relaxed under this section, references in legislation to regulations mean the relaxed regulations.

Section 4: Guidance documents for purposes of building regulations

25.     Section 4 makes provision for the Scottish Ministers to issue, revise or withdraw guidance in relation to the requirements of building regulations. It also makes provision for the procedures to be followed in issuing, revising or withdrawing such documents.

Section 5: Compliance with guidance documents

26.     As the documents referred to in section 4 have the status of guidance, they will not provide the sole means of meeting the requirements of building regulations. Subsections (1) and (2) clarify that failure to comply with guidance documents does not in itself render a person liable to civil or criminal proceedings, though proof of compliance with them may be relied on in any proceedings as evidence that building regulations have not been contravened. Subsection (3) provides that notices issuing, revising or withdrawing guidance, and documents appearing to be guidance documents, are to be accepted as such during any legal proceedings unless the contrary is proved.

Section 6: Building standards assessments

27.     This section places a duty on local authorities to carry out a building standards assessment when requested to do so by the owner of a building. The owner of a building might, for example, request such an assessment at the request of someone intending to purchase the building.

28.     Subsection (2) defines a building standards assessment and subsection (3) provides for the Scottish Ministers, by regulations, to make further provision as to the matters to be assessed in a building standards assessment.

PART 2: APPROVAL OF CONSTRUCTION WORK ETC.

Section 7: Verifiers and certifiers

29.     Subsection (1) makes provision for the Scottish Ministers to appoint verifiers, approved certifiers of design and approved certifiers of construction.

30.      Subsection (2) provides that members of approved schemes run by bodies outwith the Scottish Executive may exercise the functions of approved certifiers of design or of construction. Subsection (3) gives the Scottish Ministers the power to approve such schemes subject to limitations, e.g. they may approve a scheme only in relation to a particular geographical area or type of building. Under this subsection they may also withdraw approval of such schemes.

31.     Under subsections (4) to (6) Ministers must keep lists of verifiers and certifiers and hold information on which functions they are allowed to carry out, including any restrictions or limitations on the exercise of those functions. The lists must be made available for public inspection at reasonable times.

32.     Under subsection (7) Ministers may carry out the role of verifier to the extent and in the circumstances specified in a direction issued by them. This would enable them, for example, to act as verifiers in relation to buildings of a particular description, or a particular building.

33.     Subsection (8) provides for Ministers to direct a verifier to refer to them certain building warrant applications and submitted completion certificates. This power may be exercised after a verifier has begun the verification process for a particular job i.e. where a building warrant has been applied for but not approved or where a completion certificate has been submitted but not accepted or rejected by the verifier. Subsection (9) stipulates the circumstances under which Ministers may exercise this power. Those are where a verifier requests that Ministers take the job over or where Ministers consider that a verifier is incapable, for whatever reason, of exercising its function in a particular case. A verifier might, for example, request Ministers to take over its role in relation to verifying the compliance with building regulations of a unique building (e.g., an air traffic control centre) which it lacks the competence to verify. Ministers might also exercise the power where a verifier is not acting competently in relation to the verification of a particular project or series of projects.

34.     Subsections (10) and (11) provide that Ministers may give verifiers directions as to the exercise of their functions under the Act and that these directions may apply to all verifiers, particular verifiers or verifiers of a particular description. For example, a direction under subsection (10) might stipulate the frequency of site inspections required to fulfil the verification role or might require a particular verifier to pay particular attention to a specified aspect e.g. checking the maintenance of a Sustainable Urban Drainage Systems following a flood.

35.     Schedule 2 makes further provision about verifiers and certifiers.

Section 8: Building warrants

36.     Subsections (1) and (2) set out when a building warrant is required and make it an offence not to have one when it is required or to deviate from the work authorised by the warrant. Subsection (3) sets out the persons who may be guilty of such an offence. Subsections (4), (5) and (6) provide defences in criminal proceedings for such an offence. Where building work etc. is carried out without a building warrant and the owner or person on whose behalf the work etc. is being carried out gave the person carrying the work etc. out reasonable cause to believe that a warrant had been granted before the work commenced, the person carrying the work etc. out has a defence. Where work deviates from a warrant, the owner of the building or person on whose behalf the work etc. is being carried out has a defence where they did not know, and had no reasonable cause to know, that the work was been carried out otherwise than in accordance with the warrant. Where building work etc. is carried out without a building warrant, the owner has a defence where they did not know or had no reasonable cause to know that work etc. was being carried out. Subsection (7) provides that, if sufficient evidence is led to raise the question whether the accused has a defence under subsection (4),(5) or (6), then the accused is taken to have established the defence unless the prosecution proves the contrary beyond reasonable doubt.

37.     Subsection (8) makes provision for building regulations to specify cases where building warrants are not required. Subsection (9) provides that a building warrant is granted in respect of the building work etc. to which it applies and not the person. Therefore where, for example, a building changes ownership after a building warrant is granted, the warrant is still valid.

Section 9: Building warrants: grant and amendments

38.     Subsections (1) and (2) provide that verifiers must grant a building warrant or an amendment to a building warrant if, but only if, they are satisfied that the work will be carried out in accordance with building regulations and, when completed, will comply with the regulations. In the case of a conversion of part of a building the part being converted must comply with building regulations. Subsections (3) and (4) provide for building warrants to permit work on a building to be carried out in stages, each of which may require specific permission. This is the equivalent of the "staged warrant" system under the 1959 Act.

39.     Subsections (5) and (6) make provision for a warrant to be amended by a verifier to permits deviations from the original plans etc.

40.     Subsection (7)(a) and (8) provide that where a non-local authority verifier grants a building warrant or an amendment to a building warrant, that verifier must send a copy of that warrant or amendment, a copy of any continuing requirements imposed under section 22 and any other necessary documents to the local authority for registration in the building standards register. Subsection (7)(b) provides that all verifiers must notify the owner of the granting of the warrant, amendment to warrant or imposition of continuing requirements under section 22, unless the owner is the person who applied for the warrant or amendment.

41.     Subsection (9) provides that, in relation to sections 9 to 14 (with the exception of section 14(4)), when an application for a building warrant or for an amendment to a building warrant is made, the building regulations which apply are those in force at the time of the application for the building warrant i.e. not any earlier version and, in the case of an application for an amendment to a warrant, not any later version incorporating changes made since the original application for the warrant. However, any relaxation or dispensation which may have been issued in relation to a building regulation after a building warrant has been granted will apply to that building warrant provided the applicant applies for an amendment to the warrant.

42.     Subsection (10) provides that the provisions in sections 9 and 10 do not prevent a local authority from refusing to grant a building warrant under provisions in any other enactment.

Section 10: Building warrants: extension, alteration and conversion

43.     This section sets out further grounds for refusal of an application for a building warrant or amendment to a building warrant where the application relates to the extension to a building, or alteration or conversion of all or part of a building. The first ground for refusal, specified in subsection (2), is that a whole building which complied with building regulations at the time of the application will, in the verifier's opinion, fail to comply with the regulations as a result of the extension, alteration or conversion. An example might be where an extension to be added to a hotel would block the fire escapes i.e. the extension on its own might comply with building regulations but the hotel no longer would as a result of the extension.

44.     The second ground, specified in subsection (3), is that a whole building which failed to comply with building regulations at the time of the application will fail to comply to a greater degree as a result of the extension, alteration or conversion. An example might be a building which has an inadequate number of toilets and for which an extension, with no additional toilets, is proposed. The result of building the extension would be that the building would fail to meet the requirements for toilet provision to a greater degree than it did previously.

Section 11: Building warrants: certification of design

45.     This section enables a certificate from an approved certifier of design (appointed under section 7) to be submitted with an application for a building warrant or amendment to a building warrant. It provides that a verifier must accept the validity of the facts that are being certified by the certificate. Such a certificate might, for example, certify that an innovative design for the conservation of fuel and power or in relation to the usability and accessibility of a building for all potential users fulfils the requirements of building regulations. Subsection (4) creates an offence in relation to the issuing of a certificate of design by any approved certifier of design. These approved certifiers must not knowingly or recklessly issue such certification containing a statement which is false or misleading.

Section 12: Building warrants: reference to Ministers

46.     This section makes provision for verifiers or applicants to refer matters to the Scottish Ministers where there is doubt as to whether proposals in a building warrant application comply with building regulations or whether it is necessary to impose continuing requirements under section 22. Ministers may express a view on the matter and verifiers must have regard to such views.

Section 13: Building warrants: further provisions

47.     Subsection (1) imposes standard conditions to which every building warrant is subject. Under subsection (1)(a), the work etc. authorised by the warrant must be carried out in accordance the warrant and building regulations. Under subsection (1)(b), any conditions specified in any relevant direction under section 3 dispensing with or relaxing building regulations must be observed.

48.     Subsection (2) provides that demolition works must be completed within the period stated in the building warrant.

Section 14: Building warrants: limited life buildings

49.     Subsection (1) makes provision in relation to buildings intended to have a limited life. Under paragraph 3 of schedule 1, building regulations may make special provision for buildings intended to have a limited life. Subsection (1)(a) provides that building warrants for buildings with limited lives must state the intended lifespan of the building and that this intended lifespan must not exceed the limit specified in building regulations for that type of building. Under subsection (1)(b), the building must be demolished by the end of the period stated in the application. A separate building warrant is needed to demolish the building.

50.     Subsections (2) and (3) provide that owners may apply to extend the life of such a building if the application is made before the expiry of the period specified in the warrant. Further extensions may also be sought. The verifier may grant an extension if satisfied that is appropriate, taking any special provisions of building regulations into account. Subsection (4) provides, however, that any particular extension by a verifier of the period stated in the building warrant must not exceed that stated in any special provision of building regulations in force at the time of the application to extend the life of the limited life building. This means that when considering the application to extend, the period of the extension must not exceed any period specified in the building regulations current when the extension is applied for (and not any period specified when the building was built).

51.     Subsection (5) creates an offence where an owner has failed to demolish a limited life building at the end of the period specified in the warrant. Subsection (6) creates an offence for anyone who occupies or uses such a building after the period specified in the warrant where the person knows or has no regard to whether the period has expired. Subsection (7) specifies the penalty applicable for the offence in subsection (6). Subsections (8) to (10) create powers for local authorities to seek to prevent or restrain occupation of such buildings by applying to the civil court for an interdict. This may be either to the sheriff court or the Court of Session.

Section 15: Building warrants: late applications

52.     This section provides for late applications for building warrants to be made. They can be made at any time where work for which a warrant is required has commenced, but before a completion certificate has been accepted. Under section 9(9), the version of building regulations which applies for the purposes of the late application is the version at the time of the application, not the version at the time the warrant should have been applied for. An application for a building warrant under this section does not affect any liability under section 8(2).

Section 16: Applications and grants: offences

53.     This section creates offences in relation to applications for building warrants and in relation to verifiers granting or amending a warrant. In making applications, owners must not knowingly make false or misleading statements or make such statements recklessly. Verifiers must not grant warrants or amendments knowing that a statement contained in either of these is false.