Building standards enforcement and sanctions: consultation outcome report

7. Section 27 - Taking action after acceptance of the completion certificate

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

The provisions under section 27 may be used by local authorities to address work not in accordance with the building warrant and building regulations once the verifier has accepted the completion certificate. A few local authorities, out of 32, have utilised this power, albeit on an infrequent basis. However, most local authorities are reluctant to use it for cases after the acceptance of the completion certificate as they do not think the scope is set out clearly in the Act.

To ensure that the legislation is clear, and to reflect the introduction of the Compliance Plan approach for High Risk Buildings (HRBs), the proposals include clarifying the powers under section 27 to ensure local authorities have the option to take action on HRBs after the acceptance of the completion certificate. The clarification of the use of section 27 would allow local authorities to consider the use of this enforcement power at their discretion.

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 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. One local authority noted that this proposal would align Scotland with the Building Safety Act 2022 in England.

Some, including organisations that either agreed or disagreed with the proposal, did so because they felt the proposal should apply to all buildings, not just High Risk Buildings. One local authority expressed a view that action was more likely to be required for newly built multi-plot housing.

Scottish Government response

Scottish Government will consider this further to understand the impacts of any proposed changes to strengthen section 27 enforcement powers.

In relation to respondents request for further clarification on specific issues, these are addressed below.

• The definition of reasonable inquiry and the specific circumstances where enforcement can be pursued.

Reasonable Inquiry is for the verifier to determine. However, there is defined practice of what reasonable inquiry should include. The verifier undertakes checks during construction and prior to accepting the completion certificate. Verifiers issue a Construction Compliance and Notification Plan (CCNP) to the applicant when the building warrant is approved. The CCNP sets out the construction stages that the verifier has identified for site visits or other alternative methods to check compliance.

• How could the provision be introduced in a way that it applied to only certain building types?

The Building (Scotland) Act 2003 will be amended to include a definition for ‘High risk’ buildings.

• How and on whom would action need to be taken, e.g. could the verifier rather than the contractor be at fault?

The building owner is ultimately responsible for compliance under the Building (Scotland) Act 2003. The Scottish Government has no plans to amend who is responsible.

• If a building has been purchased from a developer, would the developer or the new owner be responsible for compliance after the acceptance of a completion certificate?

The building owner is ultimately responsible for compliance under the Building (Scotland) Act 2003. The Scottish Government has no plans to amend who is responsible.

• Who would be responsible if the main contractor is no longer operating?

The building owner is ultimately responsible for compliance under the Building (Scotland) Act 2003. The Scottish Government has no plans to amend who is responsible.

• Whether particular areas of compliance will be focused on, e.g. life/fire safety, structural safety rather than drainage issues, air tightness, foundation failure, etc.

Enforcement action is at the discretion of the local authority.