Building standards enforcement and sanctions: consultation analysis

Executive Summary

A consultation on Building Standards Enforcement and Sanctions was open between 6 October 2023 and 22 January 2024. The consultation aimed to gather views about proposals to strengthen the existing enforcement powers of local authorities and change the penalties for building standards offences. In total, 43 consultation responses were received from 18 individuals and 25 organisations.

Q1 - Do you agree with the inclusion of holding owners accountable for new or converted buildings which are occupied illegally?

There was widespread support for this proposal. Among all respondents, 90% agreed to some extent; 60% strongly agreed and 30% agreed. Over four fifths (84%) of individuals agreed (56% strongly). All but one organisation agreed (96%, with 64% strongly agreeing), and all local authorities and professional associations were in favour.

Three quarters of respondents left a qualitative response in Q1, reiterating strong support for the proposal. The most prevalent theme was agreement with the proposal to improve enforcement and ensure buildings are not occupied without a completion certificate or temporary occupation certificate. This view was expressed by many respondents, including a majority of local authorities who left an open comment. The second most prevalent theme was explicit agreement that the building owner, rather than tenants, should be held accountable, hence the need for the change.

Q2 - Do you agree with the proposal to include a new provision for the removal of work on the section 27 Building Warrant Enforcement Notice?

Over four fifths (83%) supported this proposal; over half (53%) strongly agreed, and three in ten (30%) agreed. Three quarters (78%) of individuals were in favour (56% strongly agreed), compared to almost nine in ten organisations (88%, with 52% strongly agreeing). However, none of the three commercial organisations who responded to the consultation strongly agreed.

Almost three fifths of respondents left an open comment in response to Q2. Given the high support for the proposal, most comments elaborated on the potential benefits of introducing the change; typically that a new provision would act as a deterrent, improve compliance and offer more options to local authorities and owners. Several organisations, including both those who agreed with the proposal and those who neither agreed nor disagreed, raised additional points for the Scottish Government to consider, particularly the need for flexibility in applying the provision.

Q3 - Do you agree that the provision of a standalone stop notice under section 27 would act as a helpful deterrent?

High levels of total agreement with this proposal were recorded among all respondents (86%), individuals (89%) and organisations (84%), with over half of each audience strongly agreeing and one third agreeing. The level of agreement varied by type of organisation, with 60% of local authorities strongly agreeing compared to 43% of professional associations and 33% of commercial organisations. Only one organisation - a local authority – expressed disagreement with the proposal in the closed question.

Two thirds of respondents left a comment in Q3; all but three agreed with the proposal in the closed question. These comments explained the basis of their support for the proposal, noting it was a clear deterrent. While there was widespread agreement, several respondents, including individuals and all types of organisations, argued that appropriate measures are needed to ensure a stop notice is enforced.

Q4 - Do you agree with enforcement after the acceptance of a completion certificate for High Risk Buildings?

Overall, two thirds (67%) of respondents supported this proposal to some extent; 30% strongly agreed and 37% agreed. However, 14% of respondents disagreed with the proposal. Support was higher among individuals than organisations - 78% of individuals agreed, with 39% strongly agreeing, compared to 60% total agreement and 24% strongly agreeing among organisations. Both individuals, local authorities and professional associations expressed some disagreement.

The views expressed by the three fifths of respondents who left an open comment in response to Q4 were typically in line with the levels of support and opposition recorded in the closed question. The most prevalent theme raised by many, half of whom were local authorities, was an agreement that enforcement after the acceptance of a completion certificate could be required, for High Risk Buildings in particular. Some local authorities, including a mix of those who agreed, disagreed or were neutral about the proposal, sought further clarification on a range of issues. Some respondents, including a mix of those who agreed, disagreed or were neutral about the proposal, expressed a concern that this new measure could mean the existing inspections to achieve a completion certificate are not detailed enough to uncover compliance issues

Q5 - Do you agree that the introduction of a time limit is necessary?

A majority of all types of respondents agreed with introducing a time limit. Seven in ten (70%) agreed overall, with similar levels recorded by both individuals (67%) and organisations (72%). Support was highest among local authorities (80%).

Q6 - Do you agree with the introduction of a 10-year time limit for taking action on non-compliant work?

Mixed views were expressed on the introduction of a 10-year time limit. Overall, just under half (47%) were in favour, a further 47% opposed, and 7% did not answer. Individuals were more likely to be opposed than in favour (56% compared to 44% respectively). Conversely, 48% of organisations were in favour and 40% were opposed. While support was lower among professional associations (29%), they were also least likely to oppose the proposal (29%), with the remaining 43% not answering.

Q7 - Do you have any views on the 10-year time limit proposed?

Almost three quarters of respondents left an open response in Q7. Just under half of respondents agreed with both proposals for a time-limit. Among this group, most left brief comments reiterating their agreement; some reflected on the opportunity to introduce greater alignment and consistency across local authorities and the UK.

One quarter agreed with the introduction of a time limit, but not with the 10-year proposal, primarily arguing that this is too long. Conversely, one quarter disagreed with both proposals. In their comments, these respondents called for longer limits, or for no time limit for taking action.

Q8 - Do you agree with the level of fines proposed?

There was widespread support for the level of fines proposed i.e. up to a maximum of £50,000. Overall, 79% were in favour, with 72% of individuals and 84% of organisations agreeing. All organisation types agreed, ranging from 93% of local authorities to 67% of commercial organisations.

Open comments on the proposal were provided by three fifths of respondents, and these typically reflected the widespread support recorded in the closed question. While many comments were expressions of general support, several respondents called for penalties proportionate to the type of work or non-compliance in question. Some who expressed opposition in the closed question suggested in their open comment that they supported financial penalties but felt the proposed level of fines was too low to act as a deterrent.

While general supportive comments were the most prevalent theme, several respondents called for penalties which are proportionate to the type of work or non-compliance in question. Some who expressed opposition in the closed question left comments suggesting they supported financial penalties but felt the level of fines proposed was too low to act as a deterrent.

Q9 - Do you agree with the option to include a custodial sentence?

Very high levels of support were recorded for the option to include a custodial sentence. Overall, almost nine in ten (88%) of respondents agreed, with the same high agreement recorded by both individuals (89%) and organisations (88%). All types of organisations agreed, ranging from 93% of local authorities to 67% of commercial organisations.

Just over half of respondents provided an open answer in Q9. As with Q8, the high levels of support recorded in the closed question were reflected in open comments. The two most prevalent themes were general support for including a custodial sentence, and calls for the use of a custodial sentence to be proportionate to the seriousness of non-compliance. Only three respondents who disagreed with the closed question left open comments, arguing that a financial penalty and existing legislation are sufficient or expressing concern about the impact on verifiers; this latter point was also noted by a small number who supported the proposal.

Q10 - Are there any proposals in this consultation which you consider impact or have implications on people with protected characteristics?

A majority of most groups felt that the proposals did not impact people with protected characteristics. Overall, 53% felt they did not, 12% that they did, and 15% were unsure or did not answer. Opinion varied among organisations; while all commercial organisations and 67% of local authorities felt there should be no impact, 86% of professional organisations were unsure or did not answer. Just over a quarter of respondents provided an open comment in Q10. Most comments were brief, and there was little consistency across the points raised.

Q11 - Do you think that any of the proposals in this consultation have any financial, regulatory or resource implications for you and/or your business (if applicable)?

Opinions on whether the proposals could impact businesses varied. Overall, 53% felt there could be an impact, 26% did not, and 21% were unsure or did not answer. While 44% of individuals thought there could be wider implications, this rose to 60% of organisations. Local authorities were notably more likely to believe there would be an impact (73%).

The most prevalent theme in the comments left in Q11, outlined by many respondents and particularly local authorities, was that the proposals could place additional demands on resources, staff time, training and workforce planning. Several stated that increased statutory or enforcement responsibilities would be time and resource-consuming. Two organisations raised the potential negative impact of the proposals on building costs, while three organisations felt that the proposals could have positive implications for their work, or more generally

Q12 - Do you think that any of the proposals in this consultation have any impact or implications on island communities?

Most respondents were unsure about the implications for island communities (49%) or did not answer (7%). Just over one in ten individuals (11%) and organisations (12%) thought there could be an impact, though organisations were more likely to say they were unsure or not answer (68%).

One in five respondents provided a comment at Q12. The most common theme, outlined by three respondents, was that island communities face logistical challenges, possibly making compliance with building standards harder. It was, however, noted that island communities typically have fewer High Risk Buildings.

Conclusions

Overall, there was broad support for the proposals outlined in the consultation paper. Respondents typically agreed that the proposals provide a clearer, stronger deterrent that should help to improve compliance, enable more effective enforcement and ensure building safety. However, respondents raised a variety of points for the Scottish Government to consider and clarify when developing the final proposals.