On 27 March 2023, the Scottish Government published the first edition of the Building Standards Enforcement Handbook. The handbook provides clarification on the enforcement powers that local authorities ("LAs") hold in relation to construction work on new and existing buildings and dangerous and defective buildings as set out in the Building (Scotland) Act 2003 (the "Act"). As well as LAs, the handbook may also be of interest to building owners and developers.

Background

The 2018 Review Panel on Building Standards Compliance and Enforcement identified a need to improve aspects of the building standards system ("BSS") established by the Act. The BSS defines the relevant building standards that construction work on new and existing buildings must comply with. Those standards are enforced by LAs who have legal powers under the Act to take enforcement action against persons responsible for such buildings (including owners, developers and 'relevant persons') when those buildings do not comply with building regulations and the relevant technical standards.

The BSS also provides guidance for LAs when dealing with dangerous and defective buildings to ensure that work carried out on those buildings meets the reasonable standard set out within the Act.

Key issues

The handbook aims to build knowledge and understanding of the procedures that a local authority may follow to enforce compliance with building regulations. More specifically, the handbook explains the five enforcement notices that can be issued by a LA under the Act when it is deemed that a building does not comply with regulations. These are:

  • Building Regulations Compliance Notice. This can be issued to an owner of a building under section 25 of the Act when a building does not comply with building regulations. The notice will set out the relevant regulation that the building owner must comply with, as well as the steps the owner must take to ensure that compliance.
    • Continuing Requirement Enforcement Notice. This notice can be served under section 26 of the Act when it appears to a LA that a building does not comply with a continuing requirement imposed on a building owner. The notice will detail the steps that the owner will be required to take to ensure compliance.
    • Building Warrant Enforcement Notice. A LA can serve this notice under section 27 of the Act on a 'relevant person' where work that requires a building warrant has been, or is being done, without a warrant. It can also be issued where a warrant has been granted but work has been carried out which is not in accordance with the warrant. The notice can require the relevant person to 1) obtain a building warrant, 2) alter the building so that the work carried out is in accordance with the warrant, or 3) obtain an amendment of a building warrant.
    • Defective Building Notice. This notice can be issued under section 28 of the Act where defects are found in a building. The notice requires the owner to repair the defects having regard to the building's age, type and location.
    • Dangerous Building Notice. This can be issued under sections 29 and 30 of the Act where a LA determines that a building presents a danger to its users, the public, or to adjacent buildings. The notice requires the building owner to take such steps as is necessary to remove or reduce the danger, including demolition.

    There may be serious consequences for an owner, developer or relevant person if they fail to comply with the terms of a notice. These consequences are set out in more detail in the handbook. The handbook also describes the procedure for how the above notices should be served by LAs on building owners or relevant persons, and provides guidance to when LAs can enter a property to carry out inspections and tests in relation to the notices.

    What does this mean?

    The handbook goes someway to satisfy the need to clarify aspects of the BSS. It is of particular interest to LAs, but may be of interest to building owners, developers or relevant persons who may find themselves subject to a notice. The handbook stresses that the above notices are used as a final means of enforcement if conversations between LAs and building owners are non-existent or have broken down. If issued with an enforcement notice, building owners, developers and relevant persons should ensure early engagement and compliance.


    Contributors

    Emily O'Sullivan

    Senior Solicitor