Building standards enforcement and sanctions: consultation analysis

2. Section 21 - Occupation or use without completion certificate

The first consultation question concerned section 21, an existing provision in the Act that gives local authorities powers to take action (i.e. refer case to the courts), for the offence of occupation without a completion certificate against “any person who occupies or uses a building”. The existing provision allows local authorities to take action on the persons occupying/using the building, but not on the building owner who is allowing the building to be occupied/used. Amending section 21 to include an offence by the building owner would enable local authorities to take action on them.

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. Most highlighted that the change would result in improved enforcement, while other individuals and organisations expressed their agreement that the building owner, rather than tenants, should be held responsible.

Allows improved enforcement

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 the local authorities who left an open comment. These comments included the argument that amending section 21 would better align Scotland’s regulations with other UK nations, close a loophole, and address the current anomaly where action can be taken against occupiers but not owners.

“We agree with the inclusion of holding owners accountable for new/converted buildings which are occupied illegally. While the current provision allows local authorities to take action on the persons occupying/using the building, it does not hold the building owner accountable for allowing the building to be occupied/used without the necessary certificates. This can create a situation where owners are not incentivised to ensure that their buildings comply with building standards and regulations before they are occupied.” – Local Authority

Two local authorities stated that occupation without a completion certificate does not often occur. However, one noted that it is more prevalent in housing developments and suggested the proposal should be extended to allow action to be taken against developers. Another professional/membership body reported seeing multiple examples of non-compliant buildings and, while agreeing with the proposed responsibilities for owners, stressed that Late Completion Certificates and the current level of penalties are not sufficient to deter non-compliance.

The owner, not the tenant, should be held responsible

The second most prevalent theme in responses was explicit agreement that the building owner should be held accountable, hence the need for the change. In these comments were suggestions that owners should have the responsibility to ensure compliance with building standards legislation, especially as, in many cases, they would be the ‘relevant person’ with whom responsibility lies under the Act. However, an organisation that agreed with the proposal noted the need for a fair approach:

“Clearly, it is important a property owner is held accountable for ensuring compliance with building standards, but in the interests of fairness, there needs to be some caution exercised. Landlords may have little knowledge at times of alteration works and could not unreasonably withhold consent. They may, therefore, be at arm's length from direct oversight of compliance. Accountability should first and foremost sit with the party who has initiated any non-compliant works and/or illegal occupation.” - Professional/membership body

Comments on owners’ responsibilities argued that tenants or those occupying a building generally would not know if a building complied with regulations and, therefore, should not be held responsible. A few stressed that occupiers could be vulnerable or in need of accommodation.

Further clarification needed

While there was widespread support for the proposal, some respondents asked for further clarification on issues such as.:

• Whether owners should be accountable if squatters occupy a building.
• What work constitutes an alteration.
• Who is responsible for buildings with multiple owners, leased arrangements, or where local authorities mandate or undertake work if owners cannot, such as in tenement flats.

Other points raised

Two individuals noted that occupiers might find it difficult to establish if a building meets regulations, or if their solicitor had obtained necessary certificates when buying a new build. One felt guidance should be provided for homeowners on when to obtain building warrants and to use inspectors to check completed works.

Two organisations suggested new legislation may not be necessary for non-domestic buildings:

“It could be that the legislation as it currently exists may be adequate to prosecute the building owner. If the owner lets the building out to tenants, then the owner is ‘using’ the building for commercial purposes and, therefore, the legislation allows them to be prosecuted as 21(5) refers to ‘occupies or uses a building’?” – Local Authority