In response to the tragic events at Grenfell Tower five years ago, the Scottish Government established a ministerial working group on building safety and compliance & enforcement. The group was tasked with reviewing Scotland's building and fire safety regulatory frameworks. The review panel set up on compliance and enforcement in Scotland concluded that compliance in relation to the statutory procedural requirements needed strengthening and that further enforcement powers may be required to address non-compliance.

On 11th November 2021 the Scottish Government issued a Consultation seeking views on proposals to strengthen compliance and enforcement of the building standards system in Scotland. The focus of the consultation is not a complete overhaul of the Scottish system, but to establish proposals to reshape and improve aspects of the current system and its implementation.

As the response deadline of 4th February 2022 fast approaches, we have extracted and outlined the key points currently being considered.

Proposals

The key proposals that the Consultation is seeking views on can be split broadly into three key topics:

  • the definition of "High Risk Buildings";
  • introduction of a new Compliance Plan Manager for "High Risk Buildings"; and
  • levels of fines and penalties for non-compliance.

"High Risk Building" Definition

The Consultation is considering the possibility of broadening the definition of "High Risk Buildings". Views are being sought on the inclusion of the following buildings to be included within the definition of "High Risk Buildings":-

  • Domestic buildings or residential buildings with any storey at a height of more than 11 metres above the ground;
  • Educational establishments (e.g. schools, colleges, universities) and non-domestic buildings under the control of a Local Authority/where they have an interest in the building;
  • Hospitals;
  • Residential care buildings; and
  • Housing Sites (low-rise).

New Compliance Plan Manager

The Consultation proposes the creation of an entirely new role of a Compliance Plan Manager (CPM). It is proposed that a CPM will be required to be appointed on all "High Risk Building" projects. The CPM will work with the designer and contractor to develop a project compliance plan for approval. The CPM's role will be to oversee and be responsible for ensuring that the agreed compliance plan is fully discharged from project inception to completion. Importantly, without a fully discharged compliance plan evidencing how compliance has been achieved, the verifier, who independently checks works that are subject to building warrant approval will not be able to accept a completion certificate submission until all matters identified in the compliance plan have been addressed. This CPM role would apply only to High Risk Buildings.

Enforcement – fines and penalties

Local Authorities currently have enforcement powers under the Building (Scotland) Act 2003. Action can be taken where work has not been undertaken in accordance with a building warrant or where the Local Authority considers a building to be dangerous or defective. The Act does not however provide enforcement powers to allow action to be taken on non-compliance following acceptance of the completion certificate by the verifier. The Consultation is considering the introduction of a new enforcement power to allow local authorities to take action post acceptance of the completion certificate. Views are also being sought on what level of fines should be applied and for non-compliance on "High -Risk Buildings". The current maximum fine for persons found guilty of an offence on summary conviction is £5,000. Respondents to the Consultation are invited to suggest what levels of fines they consider appropriate.

From recent events, it is considered that compliance and enforcement of building standards in Scotland (and in fact throughout the United Kingdom) require tightening for the purpose of ensuring the health and safety of people and buildings. It will be interesting to see the how the Consultation proposals are received, but what does remains clear is that building safety is not likely to fall off the national agenda.

Responses to the Consultation must be submitted by 4th February 2022, you can submit your views here.

Contributors

Jane McMonagle

Partner & Head of Transactional Construction, Infrastructure and Projects

Anna Reilly

Senior Solicitor