High risk buildings - verification during construction: compliance plan approach - background and implementation

1. Introduction

The new Compliance Plan Approach (CPA) has been developed in response to the recommendations made by the 2018 Review Panel on Building Standards Compliance and Enforcement^[1]. The Review Panel was formed by the Ministerial Working Group on Building and Fire Safety^[2] set up following failings in the construction of Edinburgh school buildings and the fire at Grenfell Tower, London. The Review Panel identified that the building standards system in Scotland was not broken but needed to be strengthened, including compliance with building regulations.

In preparation to start the implementation of the compliance plan approach work has been done to identify what additional local authority verification compliance resources are needed and building warrant Fees have been increased as part of a 3 year plan.

It is now intended to implement the compliance plan guidance as a response to the Grenfell Tower Inquiry Phase 2 recommendations^[3], and the principles of the approach to strengthening compliance with Scotland’s building standards system. Relevant recommendations are^[4]

• Recommendation 2 (para 113.7). That the definition of a higher-risk building for the purposes of the Building Safety Act be reviewed urgently.
• Recommendation 20 (para 113.31). That there is a statutory requirement that an application for building control approval in relation to the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a statement from a senior manager of the principal designer under the Building Safety Act 2022.
• Recommendation 21 (para 113.33). Introduction of a licensing scheme operated by the construction regulator for principal contractors wishing to undertake the construction or refurbishment of higher-risk buildings. That it be a legal requirement that any application for building control approval for the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that on completion and handover the building is as safe as is required by the building regulations.

The CPA is essentially a robust compliance quality system in which the actions of parties involved in the design and construction process and verifiers are planned, recorded and reported on. In the compliance plan (the prewarrant and warrant submission stages, under legislative change) the project must confirm the systems that are in place to ensure compliance, primarily for the Relevant Person, but clearly accessible to the verifier if their reasonable inquiry requires it.

It is not a new system, but an approach that seeks to ensure the current building warrant process and legislation operates in practice as it is designed.

The CPA is designed to:

• minimise the risk of completed buildings failing to comply with the building regulations and the building warrant approved plans and details
• achieve compliance with building warrant process legislative requirements (procedural compliance) to support the delivery of safe compliant buildings and the legal use/occupation of buildings
• support the relevant person (normally the building owner/developer) through their appointed design and construction teams to control the work on site to build in accordance with the approved building warrant plans and the building regulations, to deliver a compliant building and be able to evidence this, and
• ensure the planned verification inspections, checks and evidence within the approved building warrant Compliance Plan (CP) are fully achieved.
• Provide support to verifiers in their reasonable inquiry into completion certificates and the local authority in their statutory enforcement role.

Building Standards Division (BSD) undertook an initial pilot trial of the CPA with Fife Council and BAM Contracts during the development of the Dunfermline Learning Campus (2024/2025). This was followed by setting up an Early Adopters trial scheme in 2024, which is currently ongoing and covers four projects.

The insights gained from these trials have been invaluable and have been used to develop the CPA.

The new CP guidance is intended to give local authority verifiers and industry the opportunity to familiarise themselves with the strengthened approach to processing building warrant applications for High Risk Buildings (HRBs), in advance of changes to legislation.

This will cover:

• the prewarrant application stage,
• the processes involved in developing a Compliance Plan (CP),
• using the CP for verification purposes and
• recording all relevant information and evidence to support reasonable inquiry by the verifier into a completion certificate submission.

Guidance will be issued in two phases: -

1. New guidance for verifiers will be published as a replacement for the Verification During Construction (VDC) guidance^[5], but only for defined High Risk Buildings (HRB). This local authority verifier guidance, to implement the principles of the Compliance Plan Approach to building warrant projects, will be introduced by December 2025. Verifiers are expected to use this guidance from 1 April 2026.

2. Full CPA guidance for High Risk Buildings, developed by March 2026 for voluntary adoption by industry and to inform future legislative change. An implementation date for the full CPA guidance is under consideration and subject to wider sector conversations.

For defined building/project types guidance will, in phase1, introduce structure to prewarrant discussions and require the verifier to issue a CP instead of a Construction Compliance Notification Plan (CCNP).

Phase 2 will invite Relevant Persons and their HRB projects to adopt the principles of the CPA voluntarily and work with the verifier to create and update the CP, nominating a key contact from within the project who will be responsible for checking and monitoring building standards compliance. This encourages projects to provide a resource with such a focus prior to the implementation of the CPM role. A term of compliance plan agent or acting CPM would be considered appropriate.

This key contact should be as a minimum a construction professional with a detailed understanding of the building standards and procedures, regulations and technical guidance document requirements. Legislative change will redefine this key contact as Compliance Plan Manager (CPM) with statutory duties and offences, supported by an anticipated professional competency scheme and register.

RPs are advised to employ a competent agent with a responsibility for leading on compliance with building standards legislation and guidance.

Application of the VDC guidance is an expectation of the Performance Framework for Verifiers^[6].

In adding this guidance to the suite of VDC documents, it is expected that those existing publications will be amended for clarity.

Local authority verifiers are expected to adhere to the guidance, as an amendment to the VDC documents.

The procedures outlined in the guidance handbook(s) describe the processes agreed by the Compliance Plan Working Group. These processes are intended to align with those that will be formally adopted by the CP approach.

Implementation of new guidance will be supported and will add to the development of the formal and mandated role of Compliance Plan Manager (CPM) which will not be introduced until the change within legislation required is enacted.

The Compliance Plan and the Compliance Plan Manager will improve the understanding of the reasons for building regulations, their importance in delivering buildings free from defects which can affect the health, safety and welfare of those in and around buildings, and why projects need to ensure they have adequate oversight of all work undertaken, such that completion certificates can be lawfully submitted.

This will provide clarity on the responsibilities individuals have in terms of the Building (Scotland) Act 2003, and in turn allow contractual responsibilities to be clear.

There are a number of potential offences which can be committed under the Building (Scotland) Act 2003. These offences, which include carrying out work without or not in accordance with a building warrant, or occupying a building knowingly or without regard to a completion certificate not having been granted, can be committed by any person.

Offences related to the submission of a completion certificate can only be committed by a Relevant Person, and the offence relates to the submission of the completion certificate, knowingly or recklessly, which contains a false statement, not the signing of the completion certificate declaration.

Offenses can also be committed by persons in their capacity or employment within a body corporate including local authorities, to which section 49 of the Building (Scotland) Act 2003 refers.

The identity of individuals who may have committed offences under the Building (Scotland) Act 2003 would be identified by applicants on building standards forms but ultimately identified by a Procurator Fiscal in pursuing a prosecution.

BSD would welcome feedback both on the guidance provided and the processes involved, prior to the CP approach being brought into legislation.