The New Regime

The Building (Scotland) Act 2003 (asp 8) received Royal Assent on 26 March
2003 and (with the exception of the sections on building standards assessment
and Crown application) comes into force on 1 May 2005. It
is the most significant reform of the law relating to building standards since
the Building (Scotland)
Act of 1959 which this Act repeals.

Under the new regime, the concepts of building regulations, building warrants,
completion certificates and enforcement powers continue but the Act introduces
significant changes to the ways in which standards on building work in Scotland
are set and enforced, while still retaining the primary objectives of the
building standards system of ensuring health and safety and the interests of
people
affected by buildings.

Scottish Ministers have power to make building and procedure regulations
and other secondary legislation required to fulfil the purposes of the
Act, including
setting building standards, securing the convenience of persons in or about
buildings, and dealing with dangerous and defective buildings.

Building regulations may be made for the purposes of fuel and power conservation,
an increasingly important issue with the DTI having published an Energy
White Paper in February 2003, and the European Energy Directive on the
energy performance
of buildings due to come into force on 4 January 2006. Furthering the
achievement of sustainable development is also one of the principal policy
objectives
of the Act, allowing regulations to be made that would help to reduce
the depletion
of environmental resources.

Building regulations may impose "continuing requirements" on owners
of buildings to which regulations apply, to ensure that the purposes
of any designated provision of the regulations are not frustrated. This does
not mean
that continuing requirements will be imposed on individual buildings
when building warrant is granted, but that the building regulations themselves
can impose
continuing requirements, for example a requirement to periodically test
and maintain a smoke alarm or sprinkler system.

A major feature of the new regime is the replacement of compulsory technical
standards with expanded functional standards, contained in building regulations,
supported by non-mandatory guidance documents, making the new system
more flexible than the previous one. Only the building regulations will
have
mandatory force,
while the guidance documents will provide practical guidance on the requirements
of any provision of building regulations. Although these guidance documents
will not carry statutory force, and it is not an offence to fail to comply
with them, proof of compliance with such guidance may be relied on to
prove compliance with building regulations in any civil or criminal proceedings
for contravention of building regulations.

One of the main procedural changes is that local authorities can no longer
grant relaxations. Since the mandatory requirements against which applications
are assessed are functional standards, not detailed specified standards,
it is expected that in most cases it should be possible to determine
that the
proposed approach is acceptable without the need for a relaxation. Relaxations,
if required for a particular building, should be sought from the Scottish
Ministers, through the Scottish Building Standards Agency.

The Act also
introduces two new entities – the verifier and the certifier.
Verifiers will issue building warrants and confirm that proposed works
will meet the functional standards, and certifiers of design or certifiers
of construction
will certify that particular aspects of design or construction comply
with the warrant issued by the verifier and with the regulations.

Local authority
powers in relation to the identification of dangerous or defective buildings
are strengthened and to assist in the identification
of potential
dangers to the public, local authorities now have the power to enter
a
building for inspection, without any requirement for written authorisation,
where
it appears that the building may be dangerous or defective. Authorities
can still
serve notices on the owners of buildings they consider to be dangerous
or defective and may require the owner to carry out operations to
remove any
defects or
dangers.

The Scottish Building Standards Agency performs the functions of Scottish
Ministers in relation to the administration and monitoring of the system
and production
of regulations and guidance as well as maintaining registers and providing
assistance.

Functional Standards

The new mandatory functional standards which come into force on 1 May
2005, are set out in the Building (Scotland) Regulations 2004 (SSI
2004/406), which replace the existing Building (Scotland) Regulations 1990
and the
Building
Operations (Scotland) Regulations 1975. They will not apply to any
application for a warrant for work made before 1 May.

These Regulations prescribe functional standards for buildings which
cover six essential requirements of structure, fire, environment,
safety, noise
and energy in the form of "expanded functional standards", meaning that
the standards describe the functions a building should perform, such as "providing
resistance to the spread of fire" and are an expanded and more
detailed form of the previous building standards regulations. They
apply to construction,
conversion and demolition of buildings and also to the provision of
services, fittings and equipment in or in connection with buildings.
There are a number
of changes to existing regulations, intended to simplify and improve
the system.

The Regulations list certain exempted types of buildings
and services,
which include buildings controlled by other legislation e.g. nuclear
installations; buildings where people cannot or do not normally go;
agricultural greenhouses
and similar buildings used for growing plants; civil engineering works
such
as docks, wharves, piers, reservoirs, gas holders and electricity supply
lines; some small buildings; construction and development buildings;
temporary buildings
and certain types of ancillary residential buildings.

The principal difference in this category is the reduction in the extent
of buildings that will be completely exempt. Previously in some cases
single storey
buildings up to 30 square metres were exempt, but under the new regulations
the exemption is restricted to 8 square metres. However these buildings
should still be exempt from the warrant process.

Certain changes in the use or occupation of a building, such as conversion
to a dwelling, are now classed as "conversions" to which
the Regulations apply, and the standards required for such conversions
are higher than would
previously have been the case, as all standards contained in the Regulations
have to be considered, so that other work might have to be carried
out in addition to the intended conversion. However there is an element
of relaxation in respect
of some of the standards, which only have to be complied with so far
as reasonably practicable, for example in relation to separation to
inhibit the spread of
fire and smoke, or construction so as to avoid threat from flooding.

The Regulations also specify categories of buildings and services which
do not require a warrant, although within each category are detailed
exceptions to that category. So for example, while "any work to or in a house" does
not require a warrant, this does not apply to work which increases
the floor area of the house, or any alteration to or demolition of
the roof, external
walls or elements of structure or any alteration to the drainage. In
this way however, a number of minor alterations to both domestic and
commercial properties
are removed from the warrant process, although still having to comply
with regulations. Most of the exempt categories are exempt provided
they meet the
regulations. Types of replacement work are also exempt from obtaining
a warrant, provided that the work is to a standard not worse than the
previous standard.
These include replacement of fittings and equipment, flooring, cladding
and rendering, and work to doors, windows or roof-lights (but in those
cases falling
short of a complete replacement including replacement of the frame).
Repairs to windows will therefore be exempt, but replacement of windows
is only exempt
if they comply fully with regulations.

There are a total of 64 functional standards contained in the Regulations
grouped together in the six essential categories required under the
relevant EC Construction
Products Directive (Directive 89/106/EEC). This compares with twenty
one technical regulations under the previous system, and should allow
a higher
degree of
precision in determining the functions that a building must fulfil.
This constitutes a major departure from the previous system of prescriptive
or performance standards,
and allows for flexibility and innovation in design and construction,
since alternative means of compliance are allowed, provided that the
functional
standards set out in the Regulations are met.

Special provision is made in the Regulations for buildings intended
to have a limited life, which is specified as a period of five years.

The basis of calculation of measurements is laid out, dealing with area, height
and depth on the horizontal and vertical planes, and regulation
is made as
to the fitness and durability of materials and workmanship.

Work must
be carried out in a technically proper and workmanlike manner and the materials
used must be durable and fit for their intended
purpose.

Provision is also made in the Regulations for protective works for
the safety of the public while work is being carried out on a building
or
building site,
as well as the issues of cleaning of footpaths and security of unoccupied
and partly completed buildings.

Guidance

Scottish Ministers can produce guidance documents designed to provide
practical guidance in connection with the requirements of any provision
of building
regulations. There are currently two technical handbooks available,
providing guidance on
achieving the standards set out in the Regulations, one for domestic
buildings and one for non-domestic buildings. Although these guidance
documents will
not carry statutory force, and it is not an offence to fail to comply
with them, since it is acceptable to use alternative methods of compliance
provided
they fully satisfy the regulations, if the guidance is followed in
full then this should be accepted by the verifier as indicating that
the building
regulations
have been complied with, and proof of compliance with the guidance
may be relied on to prove compliance with building regulations in
any civil
or criminal
proceedings
for an alleged contravention of building regulations.

Certifiers and verifiers

Central to the operation of the new buildings standards regime are
the two new entities introduced by the Act – verifiers and
certifiers.

Verifiers

The role of verifiers is to issue building warrants and confirm
that proposed works will meet the functional standards. Once
the work
is completed a
verifier must also accept a completion certificate before the
work can be regarded
as complete. This role has traditionally been performed by
local authorities in
the past, and while the Act confers the power for other people
to be able to perform this function, currently only local authorities
can
be verifiers,
and
Scottish Ministers have undertaken that for the foreseeable
future, they only intend to appoint local authorities. All thirty-two
local authorities
in Scotland
have been appointed as verifier for all non-Crown building
work in
their area.

Certifiers

There are two types of certifier - the "approved certifier of design" and
the "approved certifier of construction" and certifiers
of design or certifiers of construction will certify that
particular aspects of design
or construction comply with the warrant issued by the verifier
and with the regulations. The certification system is based
on the concept of qualified,
experienced and reputable building professionals and tradesmen
being made responsible for ensuring compliance with building
regulations, without local authorities
(or other verifiers) having to make a detailed scrutiny of
designs or inspections.

Only certifiers who are employed by an approved body will
be able to issue certificates. Such a body must be approved
as
adopting appropriate professional
practice to provide a certification service, and this will
include quality assurance procedures to check compliance
with building
regulations. Approved
certifiers of design or construction will have to be registered
in an appropriate approved certification scheme and be employed
by a
body
that
is registered
in such a scheme.

Certification Register

The Scottish Building Standards Agency has responsibility
for maintaining the certification register of approved
certifiers of design, approved
certifiers of construction, approved bodies, certification
scheme providers, and certification
schemes and their respective permitted functions and limitations.
This is a
publicly accessible on-line register, which will be the
only authoritative source of information about certification and
will be regularly
updated. It can be accessed through the website of the
Scottish Building Standards
Agency.
There are currently two certification schemes and each
has a temporary Certification Register on the website. These
are
for
the scheme
run by SELECT for Construction
(Electrical Installations to BS 7671) and for the scheme
run by SER-Ltd for Design (Building Structures).

The appointment of verifiers or certifiers may be varied
or terminated, to ensure that high standards are maintained.
Whenever
the appointment
of a
verifier is terminated, the Scottish Ministers must appoint
another verifier to deal
with warrant applications and completion certificate submissions.

Procedures

The procedures for operating the new system of building
standards have been reformed and modernised. The Building
(Procedure)
(Scotland) Regulations
2004 (SSI 2004/428) have been published and the Scottish
Building Standards Agency
has produced a Procedural Handbook which explains how
the procedures contained in the legislation and regulations
form the structure
within which the
new
building standards system operates.

Regulations

The Regulations set out the procedures to be followed
in connection with the submission of applications for
building
warrants,
completion certificates
and
other related matters, and provide details of the criteria
which the Scottish Ministers have to consider when
approving schemes
for membership
of approved
certifiers of design or construction and the process
for appointment of verifiers and certifiers.

The various stages in the building warrant process
from submission of the application through to its determination
are covered,
and include provisions
for warrants
for conversion of buildings as well as late applications
and staged warrants
under the Act. Before determining the application,
the
verifier may send details of the application to appropriate
consultees,
which
in certain
cases will include
the fire authority. General information to be included
in applications for a building warrant, and the information
to be submitted
with specific applications
for a building warrant and supplementary information
are specified in schedules to the regulations.

In cases where there is doubt about the extent to which
the proposals in an application comply with any provision
of
building regulations,
or about
the
imposition by the verifier of continuing requirements
in connection with the warrant, reference may be made
to Scottish
Ministers
for a view.
The Regulations
specify the procedures applicable in these cases. Procedures
are also specified for cases where a direction is sought
from Scottish
Ministers
in relation
to a particular building or in relation to a description
of building.

The Regulations also cover the considerations which
the Scottish Ministers are to apply before appointing
verifiers,
which
include their qualifications,
competence, accountability to the public and impartiality.
Procedures and considerations for the appointment of
certifiers of construction
and certifiers
of design
will also have to take into account qualifications,
competence, accountability to the public and impartiality,
and the
procedures for applying for
approval of a scheme, the members of which are entitled
to exercise the functions
of either or both certifiers of design and construction
are also laid out in the
Regulations. Scheme providers have to lodge full details
with Scottish Ministers, including the competencies
in respect of
which the scheme
is to operate and
consideration will be given to issues such as whether
the members of the scheme are representative of the
aspects of design and
construction to
which the scheme
relates, and the accountability of the governing body
of
the scheme to its members. Transparency of the conduct
and membership
of the
scheme
to its
members and to the general public, promotion of good
practice by members of the scheme,
and the knowledge, experience and understanding by
them of the role and
responsibilities of certifiers, will all be elements
to be taken into account by Scottish
Ministers. Provision is also made for the circumstances
in which the appointment of verifiers
and certifiers may be terminated.

Procedures for the submission of a completion certificate
and the acceptance or rejection of such a certificate
are covered
in the
Regulations along
with provisions relating to compliance, enforcement
and evacuation notices served
by local authorities and the requirement for those
to be entered into the Building Standards Register.
The
Regulations
also
relate to general
procedure
of the
local authorities and verifiers including the procedure
at hearings, use of assessors and the maintenance and
inspection of records.

Procedural handbook

The Procedural Handbook provides practical guidance
on the procedures in the Act and the Regulations,
including guidance
on when a
building warrant
will
be required and how to apply; the role which the
Scottish Ministers, through the Scottish Building Standards
Agency,
will play,
in particular in relation
to relaxations; arrangements regarding completion
and certification as well as appeals procedures and compliance
and enforcement;
maintenance of records
and procedures for dealing with dangerous or defective
buildings. Further provisions are made in connection
with appointment
of and performance
criteria for verifiers
and certifiers, and for lists or registers of approved
verifiers and certifiers.

The Handbook also provides guidance on the procedures
that are to apply in relation to dangerous buildings,
including
guidance
on how
consultation
over
historic buildings should be conducted, with a simpler
notice procedure, although it will be necessary to
give warning
of intent to serve
a notice. There will
also be a notice procedure for defective buildings,
under which a local authority may require the owner
of a building
to carry
out
necessary
repairs. Local
authorities are given greater powers of access to
inspect buildings.

Building Warrant

A building warrant must still be obtained (where
required) before work starts under the new system,
although much
more work in
houses (but
not flats) and
straightforward non-residential buildings where
the public do not normally have access, will not require
a warrant,
than was
the
case under the
previous regime.

Applications for building warrant must be made
to verifiers. The Regulations contain a general
list
of the information
that has
to accompany an
application for various types of warrant and the
Handbook expands this list. It includes
drawings of building plans, elevations and sections,
and block plans or location plans. In the case
of applications for a
warrant to demolish
a
building accompanying
documents must include a statement detailing the
method of demolition, and in the case of applications
for
a warrant
to alter or convert
a building or provide services etc, accompanying
documents may include a structural
assessment
of the building if required by the verifier. The
Handbook provides a detailed list of all the particulars
that
need to be shown
on the drawings.

The notion of "change of use" is to be dropped. The new system instead
applies a concept of defined "conversions",
so that where there is a change in the occupancy
or use of an existing
building, if the change falls
into one of the new categories - such as changes
in the occupation or use of a building to create
a dwelling, or of a residential
building to any other
type of building, or in the occupation or use of
an exempt building to a building which is not exempt,
or to allow public access
where previously there was none
- then the current standards must be met.

The verifier has to be informed when work starts
on site, in connection with drainage works and
at completion
of
the works,
but there is
no requirement for regular site inspections, and
a more flexible set of
agreed stages
will
be allowed.

Completion certificates

When work is completed, the "relevant person" must submit a
completion certificate to the verifier, which shifts
the responsibility for ensuring that
the building work complies with regulations onto
the applicant. Statutory forms of completion certificate are contained in regulations,
although it is likely
that the verifier will be able to provide its
own printed (or
electronic version) of the necessary form. Instead of
granting a completion certificate, as in
the previous regime, the verifier now accepts
one.

Completion certificates may be accompanied by
certificates from certifiers where available,
and when they
are, there may be a
small refund of
part of the original warrant fee, provided the
verifier has been told in advance
that the work concerned is to be certified by
a certifier. Approved certifiers of
construction can certify to the relevant person
that particular parts of the work comply with
the relevant
regulations.
This procedure will replace
the
previous procedure of electrical certification,
and other aspects of construction work can also
be dealt
with in
this way. However,
the work
is not deemed
complete,
and where appropriate the building may not be
occupied, until the verifier has issued a "notice
of acceptance of a completion certificate" – although
there is no statutory form for such a notice – it
may be "in such
form as the verifier thinks fit".

The relevant person is the person, usually the
owner or a tenant or a developer, who has carried
out the
work or
made
the conversion,
or
has
the work carried
out on their behalf by a builder or other contractor.
If the owner of the building does not fall within
either of
those
categories, and the
person
required to
submit the completion certificate has failed
to do so, then the owner will be the relevant
person
for
this purpose.

There is provision in the Act for rejection of
a completion certificate if the work does not
comply with the relevant
warrant and building
regulations. However if a certificate is issued
by
an approved certifier of construction
or design, the verifier must accept that certificate
as conclusive of the matters to which it relates.
The verifier
must however
check that
the certifier
is
approved and that the certificate of construction
or design is counter-signed by an approved body.

A verifier must accept a completion certificate,
if, after reasonable enquiry, it is satisfied
that it is
accurate.
Reasonable enquiry
may include a site
inspection, although this may not always be necessary,
depending on the nature of the works, or if the
verifier has carried
out previous inspections,
and
will include checking the credentials of any
approved certifier who submits a certificate
which accompanies
the completion
certificate. Reasonable
enquiry may also include consultation with other
organisations relevant
to specified
types of works, such as the fire authority, the
licensing board, SEPA,
Scottish Water, the planning authority or Historic
Scotland. The verifier must give
notice of acceptance or rejection of the completion
certificate to the person who submitted it within
14 days of its
receipt by the
verifier.

Building Standards Registers

Each local authority must maintain a building
standards register for its area with information
on all applications
for warrant
and amendments
to
warrant, including copies of all information
and drawings submitted with them, decisions
on the applications and submissions of completion
certificates and acceptance or rejection of
them. Building standards
registers must
be kept open
for public
inspection and basic information and decisions
are to be made available in electronic format
on the
internet.

Unauthorised work

For unauthorised work, an enforcement notice
may be issued by a local authority, as happened
under
the
previous
system, but
it
will be
possible for a late
application for warrant to be accepted by
a verifier at any time before that verifier has
accepted a completion certificate for the
work. Where the work has already been completed without
a warrant,
it is
possible
for a completion
certificate
to be submitted after the work is complete,
and
a warrant will not be required, but the completion
certificate
must be submitted
with
the full
drawings
and specifications that would have been necessary
for a warrant application, and the fee which
will apply
will take into
account the fact that
it will be more
difficult for the verifier to establish whether
the
construction actually meets the regulations.
The regulations against
which such an application
will be
judged will be those applicable at the time
the completion certificate is
submitted.

Appeals

Appeals can be made to the sheriff against
a variety of matters including refusal
to grant a warrant
or rejection of a completion
certificate.
An appeal must
be made within 21 days of a decision being
issued
or of
a notice being served. Where a verifier
has refused to grant
or amend
a warrant, the
period after
which a decision is deemed to have been
made is three months from receipt of the application
if
a first
report on the
warrant application
has
not been issued,
or nine months after the date of issue
of the first report.

Building Standards Assessments

The provisions in the Act relating to building
standards assessments are not yet in
force. They will replace
the previous system
of "letters of comfort" in
which a local authority might in appropriate circumstances issue a letter,
usually to a prospective purchaser, and in respect of works or alterations
carried out in the past, to the effect that there were no outstanding building
control issues – effectively providing
comfort to that purchaser that no enforcement
action was likely to be taken.
Matters to be addressed by a
national system of building standards
assessments will be set out in regulations
to be made by the Scottish Ministers,
and
are intended to provide consistency
of approach.

The owner of a building will be entitled
to ask the local authority to assess
his building
for
compliance.
The
local authority
will conduct an assessment
of the extent to which it considers that
the building complies with building
regulations (at the time of the assessment),
the extent to which any unauthorised
work has been
carried
out,
the extent
to which
any continuing
requirement
is being and has been complied with,
and the extent to which there are defects
which
entitle
the
authority to
serve
on the owner
a defective building
notice.

Procedural guidelines will be produced
when these provisions come into force.

Forms

Regulations (The Building (Forms) (Scotland)
(Regulations) 2005 SSI 2005/172)) specifying
the form and content
of a variety of
applications,
warrants,
certificates, notices and documents
under the Act provide for the form of Building
Warrant;
Amendment to Building Warrant; Extension
of Period of Validity of Building Warrant;
Extension
of
Period
of
Use of Limited
Life Building;
three
types of Completion Certificate – Submission,
Submission where No Building Warrant
Obtained, and For Local Authority Use;
Building Regulations Compliance Notice;
Continuing Requirement Enforcement
Notice; Building Warrant Enforcement
Notice; Defective Building Notice;
Dangerous Building Notice;
Notice of Intention to
Enter Premises; Authority to Enter
Premises; Certificate to Accompany
Application for Warrant to Exercise
Powers of Entry, Inspection
or Testing; and Notice
to Remove from a Building.

Where such an application, warrant,
certificate, notice or document is
used, it must be
used in the form provided
for
in the regulations,
or
as near to
it as circumstances permit.

Scottish Building Standards Agency

Although not mentioned in the Act,
there is a new Scottish Building
Standards Agency which
was set
up on 21st
June 2004. It is an
Executive Agency
and in practice will exercise the
functions of
the Scottish Ministers under
the Act.

The functions of the SBSA are:

  • to write the building regulations and associated guidance,
  • to provide
    views to help verifiers make decisions,
  • to grant relaxations to the building
    standards in exceptional cases,
  • to maintain a Register of Approved Certifiers
    of Design and Approved Certifiers of Construction,
  • to monitor and audit the
    Certification System,
  • to monitor and audit the performance of verifiers,
  • to verify Crown buildings.

Scottish Ministers, through
the Scottish Building Standards
Agency,
have the
power to give a "view" on
the extent to which a proposed
building or construction complies
with the regulations.
The Technical Handbooks and
other guidance documents issued
by the Scottish Ministers contain
much of the technical information
about the standards, and the
Scottish Building Standards
Agency can provide an interpretation
of these, so that for example,
in cases where there may be
some doubt about the extent
to which a building or design
meets the building standards,
the matter may be referred
to the
Scottish Building Standards
Agency for their view, and
a verifier must then take the
terms of
any view expressed into account
when determining the warrant
application.

Building Standards Advisory
Committee

Under the Building (Scotland)
Act 2003, there is to continue
to be
a Building
Standards Advisory Committee,
whose function is to
advise
the
Scottish
Ministers on the exercise
of their functions under
the Act, including questions
which they may refer to
the Committee, as well as keeping
the operation
of building
regulations made under
the
Act
under review and
making recommendations
to the Scottish Ministers
in connection
with
those regulations.

By no later than 31st January
in each year, the Committee
must submit
an
annual report
to the
Scottish Ministers
with details
about the
exercise of its functions
in the immediately preceding
year, and it may also
be required to
submit other
reports
from
time to
time.

Legislation, Regulations
and Information

The Building (Scotland)
Act 2003 is available
from the
HMSO website
at

[url="http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts200...

acts2003/20030008.htm [/url]and the accompanying
Explanatory Notes
are also available
at: [url="http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/en2003/...

legislation/scotland/en2003/2003en08.htm [/url]

Full details of the
Building (Scotland)
Regulations
2004 (SSI 2004/406)
are available from
the HMSO website
at:

http://www.hmso.gov.uk/legislation/scotland/ssi2004/20040406.htm

The
full text of the
Building (Procedure)
(Scotland)
Regulations 2004
(SSI
2004/428) is available
from the HMSO website
at: [url="http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/ssi2004...
[/url]

The full text
of all prescribed
forms is
contained in the
Building (Forms)
(Scotland)
(Regulations)
2005 SSI
2005/172)
which are
available on the
HMSO website at:


http://www.hmso.gov.uk/legislation/scotland/ssi2005/20050172.htm

The
website of the Scottish Building
Standards Agency
can be accessed
at www.sbsa.gov.uk where access is available
to
all relevant information
and
materials including
the Technical Handbooks,
the
Procedural Handbook
and the
Certification Registers.

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