Part 1 - Building Standards (Compliance and Enforcement)
The report of the Compliance and Enforcement Review Panel can be accessed at Annex B. You may wish to read the report before adding your response to the questions set out in this document.
The panel identified four main themes running across their recommendations.
Theme 1 - Roles and responsibilities
Everyone in the design, construction and regulatory process must understand their roles and responsibilities, and that of others, and meet them. There is too much reliance on trust, but a higher level of scrutiny is needed in practice. Roles and responsibilities should be clarified and strengthened, with key activities and documents identified, recorded and scrutinised.
Owners and developers must take the necessary actions to meet their responsibility for the compliance of their building. They should do this by ensuring that they obtain the services of suitably qualified designers and contractors to act on their behalf and provide evidence to verifiers of how they have done it from inception through to occupation.
Local authorities must take the necessary actions to meet their responsibility as verifiers and make checks at the appropriate stages during the project covering both what the owner needs to do (procedural) and the construction (technical).
Theme 2 - Higher risk buildings
Approximately 80% of all building warrant applications are for low value work (£50,000 or less) for which the current building standards system is generally fit for purpose. The main actions needed are to ensure that verifiers and building owners properly implement the system.
The areas for improvement should, in particular, consider the 20% higher value work. Although risk-based approaches are already in place they need to be better documented and consistently applied. Relevant factors include use, occupancy, height or complexity.
The re-shaping of the system should clearly define the differences in approach for higher and lower risk projects.
Risk profiling for buildings need to be clearly understood and procedures and actions proportionately applied. Taking account of recent events, improvements should primarily focus on these higher risk buildings, including high-rise domestic and non-domestic residential buildings (i.e. buildings containing sleeping accommodation), high value public buildings and buildings with a high level of design or construction complexity.
Theme 3 - Construction
There must be a greater focus on the construction and sign-off of buildings. Inspection regimes by the owner and the verifier must be fully developed, documented and delivered. In particular the final sign-off of the completion certificate by the owner or developer must be evidenced and fully justified, and for higher risk buildings, have assurance from a professional certifier of compliance with the appropriate experience and qualifications. (Part 3 of this consultation refers to the competence and certification of those submitting completion certificates).
Also, temporary occupation and use authorisation must only be permitted where appropriate and be closely monitored.
Theme 4 - Safety critical building elements
There is a need to consider construction failure risk (quality) which has been a feature in recent building failures. The focus must be on safety critical aspects (e.g. building structure, fire safety) which should be considered at design, construction and completion stages.
The primary aim of verification is to protect the public interest, and compliance with building standards and regulations is paramount to ensure that Scotland’s buildings are safe, efficient and functional.
Recent events such as the Edinburgh Schools Inquiry, the Grenfell Tower fire and the DG One Complex in Dumfries Inquiry, have highlighted the need to shift the emphasis (and in turn resources) from systems and processes that has been largely about approving drawings and design as being compliant with the regulations to one where the completed building is constructed in accordance with the approved design.
There is currently inadequate emphasis on confirming that the actual construction of buildings complies with the approved design warrants thus undermining the fundamental purpose of the regulations of ensuring safe and fit-for-purpose buildings. Going forward there must be an increased focus on the higher risk buildings - the 20% - with a new priority being attached to the construction phase after the building warrant has been granted.
The following proposals are intended to provide the framework where the verifier has the necessary resources and skills to take the relevant actions at the appropriate times:
1. Verifiers must have appropriate levels of resourcing and skills to undertake suitable verification activities.
2. Verifiers must have procedures in place for commissioning additional resources when the necessary resources are not available in-house (e.g. for complex work, increased workload, staff absences or shortages) and should seek more structured arrangements for ways to share expertise and resources, in particular for specialist and safety critical areas.
3. The Operating Framework and the Performance Frameworks for verifiers should be reviewed to further clarify and strengthen the roles and responsibilities of verifiers.
4. The key activities of a verifier should be further clarified and strengthened, particularly in relation to the undertaking of ‘reasonable inquiry’ (including inspection) and the acceptance of completion certificates.
5. Verifiers must put a greater emphasis on their inspection and testing role during construction and at completion, with a strong focus on safety critical aspects such as structure and fire safety.
6. Local authorities must not act as verifier for their own building work due to concerns over potential conflicts of interest. This is currently permitted under the Direction issued by Scottish Ministers in 2005 under the Building (Scotland) Act 2003. The Direction should be restricted to only minor or low value work and higher risk work should be checked by a different verifier.
Question 1.1: Do you agree that the roles and responsibilities of verifiers (including their key activities) must be clearly defined and recorded, including the expected level of resources and skills needed to undertake verification activity, and the actual level?
Question 1.2: Do you agree that verifiers must place a greater emphasis on inspection and testing throughout construction and at completion?
Question 1.3: Do you agree that verifiers must place a strong focus on safety critical elements such as structure (for example wall ties, lateral restraint) and fire safety (for example fire protection, fire-stopping, cavity barriers)? If possible, please provide details in the comments box of other elements that should be included.
Question 1.4: Do you agree that local authorities should not be able to act as verifier for their own “higher risk” building work due to possible conflicts of interest?
Question 1.5: Do you agree that local authorities should still be able to act as verifier for their own lower risk building work?
Building Owner or Developer
Building owners or developers must have or procure the appropriate professional resources and skills for their project, and as such they should commission the appropriate specialists with the necessary expertise and assurance. They must take responsibility for compliance throughout the whole project and assure themselves of compliance levels, by using competent people and obtaining documented evidence. They must place a greater emphasis on their own inspection and testing regimes during construction and at completion. They must provide the verifier with appropriate levels of documented evidence of compliance throughout construction and when they certify compliance of the building at completion. This should be produced by appropriately qualified and experienced professionals with suitable indemnity insurance cover.
Proposals - Building Owner or Developer
The following proposals are intended to provide the framework where the building owner or developer has the necessary resources and skills and takes the relevant actions at the appropriate stages.
7. The level of resourcing and skills that an owner or developer is expected to have, or have access to, should be defined and met (e.g. project specific).
8. The key activities of an owner or developer should be further clarified and strengthened, in particular during construction and when signing the completion certificate.
Question 1.6: Do you agree that the roles and responsibilities of building owners and developers (including their key activities) must be clearly defined within the building standards system and recorded including the expected level of resources and skills needed to assure themselves and verifiers of compliance, and the actual level?
Question 1.7: Do you agree that the building owners and developers must, to ensure compliance, place a greater emphasis on inspection and testing throughout construction and at completion, with focus on the safety critical elements?
For higher risk buildings, a documented “Compliance Plan” approach should be introduced running from design inception to completion. This must be prepared and maintained by the building owner or developer throughout the project life. The Plan must be developed before the building warrant application is made, agreed before the building warrant is granted, and formally reviewed before work commences and at completion. The Plan must include all relevant building standards related regulatory authorities.
The approach will be integrated throughout building standards procedures and will include documenting the following:
- the evidence of construction compliance that will be required from the contractor;
- the inspection and testing plan the building owner or developer will undertake;
- the inspection and testing regimes the verifiers will undertake; and
- the inspection and testing regimes actually carried out.
The Plan would run for the life of the project and be regularly reviewed. The Plan will be developed at mandatory pre-application discussions and agreed before the building warrant is granted. It will be formally reviewed at mandatory pre-construction discussions before commencement of work, and at completion of the work. Discussions and reviews should include other regulatory bodies as necessary.
The Plan would cover aspects such as the intended form of procurement, the competence of the client’s professional technical representatives, the expertise of the contractor, project timetable, any proposed staging of warrants, the safety critical buildings elements, the evidence to be provided to building standards officials during construction, and the planned inspection regimes by the client and the verifier.
It should recognise the need for the client to appoint a competent person to provide them with the necessary level of assurance on compliance issues before they (the client) certify compliance by signing the completion certificate, for example a certifier of compliance with the appropriate experience and qualifications. The Plan should also recognise the need for engagement with and between regulators at key design and construction stages, in particular the Scottish Fire and Rescue Service at completion, prior to occupation and use.
Proposals - Compliance Plan
The following proposals are intended to provide a framework where the building owner or developer demonstrates their approach to compliance from initial design, through detailed design and construction, and leading to their final sign-off and certification of the completed building:
9. The introduction of a documented “Compliance Plan” for higher risk projects to set out the agreed level of detail needed for the design (building warrant application) and the construction (post building warrant to completion certificate). The Plan will be developed by the building owner or developer and agreed with the verifier.
This proposal is intended to provide a framework by which the building owner or developer demonstrates their proposed approach to compliance from initial design, through detailed design and construction, and leading to their final sign-off and certification of the completed building.
Question 1.8: Do you agree with the requirement for a “Compliance Plan”, to be provided by the owner or developer, to demonstrate their approach to compliance from initial design, through detailed design and construction, and leading to their final sign-off and certification of the completed building?
Question 1.9: Do you agree that the building owner or developer should be required to appoint a competent professional person, with the appropriate experience and qualifications, to act on their behalf in order to assure them of compliance when they submit the completion certificate?
Building standards system
The existing procedures must be reviewed and strengthened, with the initial focus on higher risk buildings, including high-rise domestic and non-domestic residential buildings (i.e. buildings containing sleeping accommodation), high value public buildings and buildings with a high level of design or construction complexity. These should cover building warrant application, construction and completion certificate submission and consider electronic processes and the use of digital documentation for evidence of compliance.
The Compliance Plan approach (set out in the previous section) runs through the whole building warrant and completion certificate process and each key aspect requires recognition in legislation. There should be mandatory discussions at pre-building warrant application stage and before work starts.
The application for building warrant needs to include the key information. For example alternative solutions, (third party designs where detailed design will be finalised during construction), and fire safety strategy (drawings indicating separation, compartmentation, protected zones etc.). As well as addressing the introduction of changes to building warrants to allow project-specific conditions (e.g. for third party designs, manufacturers details).
Construction related procedures and guidance need to be reviewed and strengthened for higher risk buildings. For low rise housing and residential developments, the level of inspection could be structured similarly to the inspection regimes by new housing warranty providers. This includes the introduction of mandatory notification of work stages and intrusive surveys if notifications are not made.
The completion certificate should be expanded to require the owner or developer to sign-off safety critical sub-sets of the building and provide the appropriate evidence to the verifier (for example relating to the building structure and fire safety aspects such as fire-stopping). Sign-off at completion should also involve engagement with other regulators, particularly the Scottish Fire and Rescue Service.
Work that requires a building warrant cannot start until it has been granted, although work can progress through staged warrants. A new building, which includes an extension to an existing building, cannot be occupied or used unless the verifier has accepted the completion certificate. Although the verifier may grant temporary permission for occupation or use, this creates problems when work is not finished or compliance issues are not addressed as expected.
Proposals - Building Standards System
The following proposals are intended to strengthen the building standards procedures so the building owner or developer, and verifier take the relevant actions at the appropriate stages:
10. Design (procedures up to granting of building warrant by verifier):
- For higher risk buildings, the introduction of mandatory discussions at pre-application and pre-commencement.
- Amendments to building warrants to be dealt with proportionately taking account of whether they are for minor or major changes to design, or for progressing staged warrants.
Question 1.10: Do you agree that mandatory pre-application discussions and pre-commencement of construction discussions should be introduced for higher risk buildings?
Question 1.11: Do you agree that amendments to warrant should differentiate between minor changes, major changes, and staged warrants?
11. Construction (procedures throughout construction):
- Construction procedures and guidance to be reviewed and strengthened for higher risk buildings to cover notifications, inspections, disruptive surveys and recording non-compliances.
- Design changes to be notified to the verifier as the project progresses and subsequently covered by an amendment granted before the completion certificate is submitted.
Question 1.12: Do you agree that the construction procedures and guidance should be reviewed and that mandatory notifications are introduced, including notification of progress on higher risk projects?
Question 1.13: Do you agree that verifiers should carry out ad-hoc (unannounced) progress inspections and be able to require disruptive surveys when mandatory notifications are not made to them?
Question 1.14: Do you agree that verifiers should record safety critical building standards non-compliances and feedback at a national level to drive improvements?
Question 1.15: Do you agree that verifiers should be notified of minor changes in design as the project progresses, on the understanding that they are to be covered by an amendment to warrant before the completion certificate is submitted?
12. Completion (submission of completion certificate and acceptance by the verifier):
- Completion certificate procedures and guidance to be reviewed and strengthened for higher risk buildings to cover as-built drawings, compliance planning and sub-sets for safety critical aspects.
- Temporary occupation or use procedures to be reviewed to cover declaration of compliance, expiry dates and significant alterations to higher risk buildings.
Question 1.16: Do you agree that the completion certificate for a higher risk building should have sub-sets for safety critical aspects, and be accompanied by as-built drawings and the completed Compliance Plan?
Question 1.17: Do you agree that the procedures for the temporary occupation or use of a building should be strengthened for example requiring a declaration of compliance and monitoring of the expiry dates?
Question 1.18: Do you agree that restrictions to the occupation or use of existing buildings should be considered when significant alterations are being carried out to higher risk buildings?
Under the Building (Scotland) Act 2003, the building standards procedures requires for certain processes to be undertaken and for work to be technically compliant with building regulations. The Act includes offences which include for, in simple terms:
- Any person carrying out work or a conversion (which required a building warrant) without a building warrant ;
- Any person carrying out work or a conversion not in accordance with the building warrant;
- Any person not demolishing a limited life building in accordance with the building warrant;
- Certifiers of design or construction issuing certificates recklessly or containing false or misleading information;
- Any person submitting a completion certificate to a verifier recklessly or containing false or misleading information; and
- Any person occupying or using a new or converted building (which required a building warrant) without a completion certificate having been accepted.
Enforcement action may be undertaken informally by the verifier but might escalate to the local authority instigating formal enforcement under sections 25 to 30 of the Act. This includes taking emergency action (dangerous buildings), serving notice and undertaking work when the notice is not complied with. The local authority can recover their reasonable costs from the building owner. Although informal action can often resolve the issue, this is not always the case.
Local authorities (in both their verifier and regulator roles) must be required to act more pro-actively to enforce compliance with legislation. This requires regular monitoring of construction activities, particularly when a building warrant has been granted and in the lead up to completion, occupation and use. They must identify proactive key activities intended to regularly monitor progress through construction to completion. A person guilty of an offence is liable on summary conviction to a fine not exceeding level 3 (£1,000) or level 5 (£3,000), depending on the offence.
Proposals - Enforcement
The following proposals are intended to provide a framework where the local authority actively monitors construction progress and takes appropriate enforcement action:
13. The introduction of enforcement guidance for local authorities on key building standards related activities in the roles as verifiers (informal) and as enforcing authority (formal) to drive a pro-active approach
14. Local authorities must identify their enforcement policy and resourcing, and commitment to undertake formal enforcement when necessary.
15. Local authorities must have appropriate levels of resourcing and skills, be more pro-active and monitor projects regularly, and undertake appropriate enforcement activities.
16. The level of fine that can be applied by local authorities should be increased such thatthey incentivise developers to fully comply first time with building standards. Fines should allow for full cost recovery in the most serious failures with compliance.
Question 1.19: Do you agree that local authorities should be more pro-active in enforcing building regulations and monitor construction regularly?
Question 1.20: Do you agree that local authorities should have a building standards enforcement policy in place that is based on national guidance?
Question 1.21: Do you agree that national guidance on building standards enforcement should include what enforcement related actions local authorities should carry out and the level of resources and skills they should have to do so?
Question 1.22: Do you agree the penalties and levels of fines associated with serious failures in compliance should be increased?