Building regulations - energy standards and associated topics - proposed changes: consultation

Part 6 – Improving and Demonstrating Compliance

6.1 Introduction

6.1.1 Background

There is already a significant body of research into the gap between designed and as-built energy performance of buildings. Improving performance and compliance was identified as one of five themes by the UK Committee on Climate Change in their 2019 report on UK housing^[30].

There are a number of factors which can influence a ‘performance gap between design intent and energy consumption in use.

• It is recognised that overall building performance, as illustrated by the SAP or SBEM calculation, is based upon a standardised set of assertions on building operation and use. Developing a greater understanding of how calculated and actual performance can be referenced and compared is noted as a topic for future discussion and development.
• Occupant behaviour is also a significant variable. Not one which can readily be addressed through regulation but through education and the provision of the means to understand and use our buildings more effectively, including clear information on the building and its systems and smart or simple and intuitive controls for building services.
• Unconsidered design or poor implementation on construction (‘build quality’) is generally recognised to be a major factor in issues with building performance. This is a an aspect of the equation which can be addressed, to a degree, through building standard processes through an improved and more evidenced compliance regime. But it is also reliant upon wider application of good practice across the construction sector.

Issues can arise from poorly considered specification or detailing, product substitution, poor installation or failures in commissioning and also the provision of inadequate information to end users. At best, this results in increased energy use; at worst, risk of building elements degrading or creation of a less healthy internal environment.

There is a recognised need to develop and implement proposals which provide greater assurance that that energy efficiency requirements specified through standards and guidance are properly considered at design stage and, on construction, delivered in practice.

The focus of this review is on simple steps which can be taken to increase assurance that the design intent for a building is delivered effectively. Though evidence of design risk assessment and robust quality assurance, supported by performance testing, the intent is to remove common deficiencies in the design or construction process as major contributors to adverse performance.

As part of this review and ongoing development of the Compliance Plan approach (see section 6.1.2 and 6.1.3 below), we seek to identify the extent to which prescription within building regulations can support a more consistent and better outcome from an energy use perspective and provide more assurance on both design and construction processes. This paper discusses two components that contribute to that outcome:

• The current development of the Compliance Plan approach to provide more assurance on both process and outcome.
• Specific issues which can be addressed within amended standards and guidance to section 6 (energy).

6.1.2 Improving compliance with building regulations generally.

The Scottish building standards system is pre-emptive. Other than for limited scope of works where a building warrant is not required (covered in schedule 3 to regulation 5)^[31], it is designed to provide assurance that proposed building work meets standards through verification of the proposed design and the subsequent issue of a building warrant prior to works commencing; and oversight by the verifier, to the extents required through their duty of ‘reasonable inquiry’ to support consideration of the completion certificate submitted by the applicant.

It is important to note that verifier inquiry does not provide a system to control work onsite. That is a matter for contractual arrangements put in place by the person ultimately responsible for the work (who has the duty to deliver a compliant building) and the other parties engaged to design and construct the building.

The current building standards system places the requirement to comply with the building regulations on the Relevant Person (normally the owner or developer). The Procedural Handbook, which provides clarification on the processes underpinning the Scottish building standards systems, clarifies that inspections (and other checks) made by verifiers during construction and on completion are intended to protect the public interest, specifically in relation to compliance with building regulations and to discourage the avoidance of legislation.

In his report on Compliance and Enforcement (2018) Professor John Cole noted that this responsibility would benefit from reinforcement through evidenced process:

“It must be made clear that it is the legal responsibility of clients for all buildings that will be occupied, used, worked in or visited by members of the public to ensure that these buildings are compliant with the regulations. This responsibility should include a requirement on the client and appointed agents to the client to provide Building Standards services with the necessary evidence to demonstrate compliance.”

The proposed Compliance Plan approach seeks to define and implement an appropriate and robust assurance regime to demonstrate that the duty imposed on the Relevant Person is being managed robustly at both design and construction stage. This will give greater, and better evidenced, assurance that the outcome of works will be a compliant building. From the perspective of energy performance, this means greater assurance that the declared performance will be achieved in practice.

6.1.3 The Building Standards Futures Board

The Scottish Government, through Building Standards Division (BSD), is developing a national Compliance Plan approach to provide greater assurance that compliance with building regulations is achieved from design to completion.

Following the tragic fire at Grenfell Tower in 2017 a Ministerial Working Group^[32] was set up to review building and fire safety regulatory frameworks. The Group commissioned two review panels for building standards; Compliance and Enforcement and Fire Safety that subsequently published their own recommendations. As part of the Compliance and Enforcement review^[33], consideration was given to issues and findings from the independent inquiries into the construction of both Edinburgh Schools (Cole Report) and the ‘DG One’ leisure complex in Dumfries. This included the importance of site inspections and supervision and the role, responsibilities and competence of different persons involved in building projects.

A public consultation ‘Building Standards Compliance and Fire Safety – a consultation on making Scotland’s buildings safer for people’^[34] was carried out between July and September 2018. The responses were supportive of change to strengthen current building standards guidance to improve building quality, compliance and enforcement. Eighty two percent of respondents agreed that a ‘Compliance Plan’ should be provided to demonstrate compliance with the building regulations from concept to completion.

As a result, the Building Standards Futures Programme Board^[35] was set up to provide guidance and direction on the development and implement of the recommendations made by the Review Panels on Compliance and Enforcement and Fire Safety.

The Board’s remit is to strategically advise and direct a broad programme of work aimed at improving the performance, expertise, resilience and sustainability of the Scottish building standards framework and services across Scotland. Recommendations are being taken forward through seven work streams which are interlinked and collectively aim to drive transformation of the building standards system in Scotland

This includes a current Working Group focussing on the development of a new, extended and strengthened ‘Compliance Plan’ approach to the delivery of projects subject to the building regulations. The aim being to deliver greater assurance, through evidenced process, that buildings are compliant during both the design and construction stage.

6.1.4 The Compliance Plan Approach.

Following significant review and research into other quality assurance schemes, including that implemented in support of the Construction, Design and Management Regulations and initiatives to improve building regulations in other administrations (including a study of recent work in Ireland), a Compliance Plan Working Group was convened and held its first meeting on 28 October 2020.

The remit of the group was set out as follows:

• To undertake a comprehensive and open discussion around the reality of why non-compliance occurs, something which has been described as a systemic issue within the construction industry.
• To make recommendations for a system which would provide greater assurance that the need, and legal responsibility, to comply has been understood by building owners, designers, contractors and then supported by verifiers from concept to completion.
• To review the existing approach to compliance, identifying strengths and weaknesses, to identify and recommend potential changes that could strengthen the compliance system.
• To consider the roles and responsibilities of those involved in the process, including skills needed to undertake particular roles or new roles, including the independence and reliability of oversight during construction.
• To consider whether a strengthened approach to compliance should focus on high risk projects and safety critical elements or whether the approach should be tailored to apply to all. (note: the intent is the latter)
• To develop and make recommendations for a potential new Compliance Plan approach, including on the status needed within the building standards system to deliver the most effective outcome.
• To consider and recommend the best way of implementing a new Compliance Plan to have maximum effect, including associated procedures and enforcement.
• To consider what should be done in Scotland to embed a stronger culture of compliance throughout the construction industry?

To date, the main group has met three times. There are also three themes sub-groups examining core aspects of the compliance process. These are noted below.

Compliance and Enforcement

How the proposed new process and role would integrate into the current building standards system, retaining but expanding the current Construction Compliance and Notification Plan (CCNP) regime. It would also consider pre-application discussions for high risk buildings and establish the required evidence and documentation that will be collected and submitted to demonstrate compliance with the building regulations. Both as part of a recommended process to support a more informed approach to verification and also identify the potential to mandate specific actions through amendments to legislation where necessary. We anticipate that some changes can be made without changes to legislation and will be deliverable through updated guidance and established processes.

Considering resourcing from a verification perspective and the need to consider enforcement and penalties arising from failure to implement due process when demonstrating compliance.

Considering how related aspects of process may require to be amended to support an effective ‘gateway’ approach and validation of activity at key points in the design and construction process.

Quality of Applications

Work to support the development of best practice guidance for applicants to improve the quality and consistency of information submitted in support of a building warrant application. Action based upon clear knowledge and understanding of the building standards system, the requirements for an application and the responsibilities of a building owner/applicant, directly or via their agent.

Consider the key attributes which make a quality building warrant application and recurring quality issues with applications. A survey of verifiers in such matters was commissioned recently and is being analysed to report to the group.

Reflect on the need for consistency in analysis and reporting from verifiers as well. A consensus on the benefits of standardised national guidance on the level of quality expected of a building warrant application, avoiding the need for guidance by each verifier. Examples of topics under discussion include:

• Reinforcing the responsibility and duty of owner/applicant.
• Encourage the use of a professional should the applicant not have the knowledge and understanding required, linking to Compliance Plan Manager.
• Noting the role of Certification of Design to assist in the quality of applications.
• Guidance to be appropriate for the lay person as well as the professional, not be overly prescriptive. Investigate formats that promote informed action beyond simple checklists.

The Compliance Plan Manager Role

Creating the role of Compliance Plan Manager to oversee compliance with building regulations from concept to completion on behalf of the Relevant Person and be the verifier’s point of contact to support the verification process. The Compliance Manger’s role would be to support the building owner and assume responsibility for managing the actions of others which are needed to provide assurance that work is completed in accordance with building regulations and all agreed verification compliance requirements are met and documented.

Any new compliance system will need to re-establish full awareness of the role of building standards and that of the Relevant Person. Setting out the requirements of this role which may include the need to appoint a separate Compliance Plan Manager to oversee the project on high risk building types, from concept to completion.

The proposal is to strengthen the building standards system for all users and therefore we are considering similar provisions for lower risk building types. Where the Relevant Person does not have the requisite skills, knowledge or experience to undertake the role, they would need to declare at the outset who would be acting as their duly authorised ‘compliance’ agent.

Action at early design stage

The current verification and construction process would benefit from being ‘bookended’ by a more informed and evidenced approach to the initial design, from a compliance risk perspective and the provision of key summary information on the delivery of a compliant building on completion, in support of both the verifier and the relevant person and subsequent users of the building.

Investigating action which can be prescribed prior to submission of a building warrant. From the perspective of an informed and complete building warrant application, action early on at the start of the design stage is needed, including identifying how compliance has been approached. The Construction Design and Management (CDM) Regulations requires that the ‘Principle Contractor’ completes a ‘Construction Phase Plan’ prior to work commencing on site. Feedback at workshops with designers confirmed that the majority of practices already carry out building regulation compliance checks internally. However, this is not recorded on a formal document that is submitted with the warrant package to the Local Authority verifier. The consensus was that submitting this information would reduce enquiries from LA verifiers and assist the verification process. Verifiers have agreed that receiving a document like this with the warrant submission would be highly beneficial.

On completion - construction compliance evidence documents

The collation of this documentation will improve the robustness of the completion process by delivering evidence of compliance above and beyond that gathered by the verifiers during their undertaking of reasonable inquiry.

The Cole Report on Compliance and Enforcement^[36] recognised that due to the limited number and level of detailed inspections that can practically be undertaken by Building Standards services, more onus must be placed on owners and developers to provide specific and documented evidence of the build process to show buildings having been constructed in compliance with the approved design warrants.

Such evidence of competent process can, in summary, also provide greater assurance and, if necessary, redress for those that subsequently take on responsibility for a completed building or building works.

Current position and timetable

The intent is to develop proposals for consultation in late summer 2021. In parallel with that process, Building Standards Division (BSD) is seeking to partner with selected verifiers and developers to trial some of the key elements of the Compliance Plan process to understand better how it can be integrated into the current activity of designers, contractors and verifiers. At this point, a timetable for potential implementation of the new regime has yet to be set out but it is anticipated that following the required process of consultation, analysis and finalisation, along with a lead in time for industry, this would likely result in an in-force date in 2023/24.

Again, to restate that, whilst this workstream arose from a need to address the most significant risks from non-compliance, those relating to life safety, it is intended that the Compliance Plan Approach will be applied to all mandatory requirements for buildings set under the building regulations and verified where a building warrant application is required.

6.1.5 Improving compliance with energy standards - themes.

In late 2019, BSD commissioned a short research project to assist in understanding the issues that arise in the delivery of low energy buildings and how greater assurance of process could be delivered, focussing primarily on building fabric issues. The output of the project was not intended to be a guide for designers and contractors but to inform the later development of such a resource.

It is intended to now progress this agenda, extending scope to include the design, installation and commissioning of building services, in the context of the Compliance Plan approach. We are commissioning the development of a ‘compliance manual’ to support effective delivery of compliance with Section 6 (energy) in a format which would be compatible with the Compliance Plan approach and supporting core guidance.

Question 47 –

Do you have any experience of successful design or construction quality assurance regimes which you consider may be useful to consider in the context of this ‘Compliance Plan manual’ work for section 6 (energy)?

Yes

No

If yes, please share any relevant information.

As this point in time, further detail on the timetable and format needed for such information to support this approach is still in development. But we would anticipate the following themes:

Informed design

The need for the party intending to commission building work to engage at an early stage with consultants who can demonstrate (to the satisfaction of the applicant) competence in the design and delivery of low energy buildings. Applying the basic professional principle of not operating outwith the scope of ones’ competence.

Risk assessment

The need to investigate and set out how compliance with the requirements of section 6 (energy) will be achieved; identifying key risks arising from design or specification choices, the approach taken and how they will be managed/mitigated.

Avoidance of declaring design values without demonstrating an understanding of how these will be achieved in practice.

To prepare a summary of this process in support of proposals submitted for building warrant to aid interrogation of proposals by the verifier as part of the Compliance Plan approach.

Calculation

Following action initiated by other UK administrations to review the benefits that can be derived from improved compliance reporting output from SAP/SBEM calculation software.

Communication

Advice on good practice to support clear cross referencing of calculated values and source of data (U-values and psi values) with elements presented in drawings and specification. Improving the clarity and presence of statements in guidance that set out the expectation for the design and construction and testing/commissioning of building elements.

Competence

In the context of an improved and better evidenced process, discussion on the benefits of defining competence of actors involved in various aspects of the energy design and construction process. Including, but not limited to, the correct use of calculation software, determination of thermal performance, design and specification of building systems and controls.

Commissioning

A more comprehensive and standardised approach to summarising the commissioning and performance testing of installed building services. Supported, at design or pre-construction stage, by a clear scheduling of specified services and their declared performance to assist in validation, post-commissioning.

Defining appropriate quality assurance of construction

Engaging with the verifier to develop and agree the inspection, reporting and quality assurance regime which will be implemented on construction (where the Compliance Plan will expand upon the current Construction Compliance Notification Plan (CCNP).

Performance testing

A discussion on the range of diagnostic tools which may be beneficially employed to verify the performance of particular aspects of construction, during or at the end of the construction process.

This might include action such as proactive use of additional airtightness testing at an earlier point in the construction process or the use of thermography to support/augment visual inspection of fabric installations.

Use of data

For ease of validation - better and more consistent recording of the sources cited for declaration of performance, reporting on commissioning and the outcomes of testing; adopting facilities already in place by industry bodies where available.

We consider it is important to emphasise that provisions introduced into guidance should reference current good practice and are intended to reinforce the need for this, not create new obligations. Noting that some expansion of provisions specific to the building standards system, such as the wider regime for airtightness testing, will attract some small additional on-costs.

It is not, therefore, expected that a more informed and evidenced approach to the delivery of energy efficiency in buildings should result in significant additional capital cost to development (compared to expected practice), beyond the need to engage a coordinating individual to manage the process.

Question 48 –

Do you have any comments on the above themes and any other actions you consider would be useful in supporting improved compliance with requirements for energy and emission performance.

Yes

No

If yes, please provide a summary of your views.

6.1.6 Improving compliance with energy standards – topics of interest.

There are existing elements describe elsewhere in this consultation which are emphasised to support improved outcomes, including enhanced airtightness testing (section 2.2.14 and 2.2.15) and reinforcing the need for effective design and commissioning of ventilation systems (section 4.2.7)

Specific further issues to consider and address are summarised below.

Evidence of compliance

• Installation QA – not to be specified within Section 6 guidance but will form part of the Compliance manual developed to support the proposed Compliance Plan process. This would include (it is proposed) documentary and pictorial evidence of installations at key stages to show the correct application of construction practice. Suggestion that this body of evidence is retained by the developer and a summary prepared and issued to both the verifier and client on completion, to inform occupation and future maintenance of the building.
• Verification of installed products and services against the declared building warrant specification, including confirmation of specific products used where a performance specification was approved; and recording of any changes in specified products to confirm declared performance/function in not adversely affected.
• Full documentation of any changes made from the issued building warrant, during construction including confirmation of products used where only a performance specification was included at warrant stage. More effective use of the Amendment to Warrant process to record such changes.
• Submission of an as-built compliance calculation (SAP compliance check) to reflect any changes made during construction, to confirm design intent is achieved.

Building fabric, design stage

• Emphasis at design stage on defining a deliverable approach to the continuity of the insulation envelope. Air and vapour control layer (AVCL) – location and continuity, penetrations and critical junctions.
• Thermal Bridging at junctions – buildable details with deliverable sequencing. Visual representation (e.g. wire frame) of all junctions and linear bridging with dimensions, key to relate to schedule of values used, including source of data.
• An understanding of achievable infiltration rates for a specified construction and specification of ventilation accordingly.

Building fabric, construction stage

• Fabric insulation – correct and complete installation, avoiding loose fitting of insulation and gaps which will provide unwanted air pathways. Airtightness testing at key stages – benefit of checking on completion of AVCL at first fix, prior to sheathing? On larger projects, use of thermography on early completions once heating is available to validate implemented QA regime?
• Per section 2.2.14 and 2.2.15, mandate airtightness testing of each building (review of EPC data indicates 1 in 3 dwellings tested), noting that partial testing of large ND buildings may be the only practicable solution. Move to use only testers registered with a supervising body who provides central registration of all test certificates and QA of tester output.

Building services, design stage

• The need for an informed approach to system design to suit building characteristics; issues such as plant sizing and the interaction and control of systems.
• Ventilation - clarity on the expectation at design stage, system design recognising need for testing and commissioning to confirm design intent.
• Commissioning Plan forms part of building warrant application and is carried into Construction Compliance Notification Plan / Compliance Plan.

Building services, construction stage

• Review of specification and how it will be implemented to identify any risks that may impair operational performance (routes, sequencing, materials and installation standards). Incorporation into overall construction quality assurance plan.
• Commissioning – must provide validation of the declared performance, for both function (measurable output/effect) and energy consumption associated with that function (efficiency). Inclusion of commissioning information within Compliance Plan summary.
• Review of documentation on installed systems provided to end user to confirm clarity and completeness; to inform operation and maintenance.

Question 49 –

Are there particular aspect so building design and construction which you consider should be prioritised as part of the development of a detailed compliance manual for section 6 (energy)?

Yes

No

No view

If yes, please provide further details, including any evidence you are aware of that supports such emphasis.

6.1.7 General comments

Question 50 –

We welcome any other comments you wish to make on these topic of improving compliance of building work with the provisions within section 6 (energy) to better align designed and as-built performance.