High risk buildings - verification during construction: industry guidance

7. Methodology

This guidance assumes the project is adopting the full Compliance Plan Approach as described in this guidance.

A simplified process map is shown in appendix 1 to this document.

In order to engage in the CP process, set out in this guidance, the Relevant Person for a project must first identify a duly authorised agent, who will be tasked with leading on the CPA for the project.

7.1 Step 1 - Prewarrant stage

At least 12 weeks before the submission of the first building warrant application for a development of a project in scope, the duly authorised agent should engage with the local authority building standards verifier where the application for building warrant will be submitted.

The verifier will provide the duly authorised agent with a blank copy of the PreWarrant Compliance and Procedural Form^[14]

The PreWarrant Compliance and Procedural Form should be completed in as much detail as is possible by the duly authorised agent and should include the following information about the project:

• Project details – a brief description of works, address of the site and any interest the verifier may have in the project as part of the local authority.
• Details of responsible persons – including the RP, duly authorised agent, owner, design team, delivery team and main contractor.
• The prewarrant discussion is also an early opportunity to agree a robust information management and communication plan between verifier and project.
• Previous discussions with the verifier – dates, subjects and outcomes.
• Supporting information – what drawings, reports and specifications provided with the form.
• Approaches to compliance – for each section of the technical handbooks, whether the guidance is followed and any alternative means of compliance proposed including proposed approach to compliance with the mandatory standards.
• A submission plan – this should detail any staged approval sought, timescales and any Contractor Design portions (CDP) for each stage.
• Details of any Certification of Design or Certification of Construction – including alignment with stages (eg staged certificates must match stage warrant proposals), details and registration numbers of Certifiers.
• High risk compliance elements – anticipated portions of work where there are higher risks of a non-compliance, through experience of recent high profile failures or as otherwise identified by the design team or main contractor.
• Consultations, Reports, and other Consents – it is expected that outside of statutory consultation by the verifier with the fire authority, consultation with external bodies should be undertaken by the project in advance of warrant applications.
• Any Customer Agreements with the verifier – by agreement with the verifier, revised response targets for larger projects can replace those normally required. This anticipates that major works will often require more time for the verifier to carry out a full technical check of proposals and respond to the design team.
• Details of the completion certificate submission – details of who will sign the certifying statement on the completion certificate submission, and the identity of the RP who must submit the completion certificate in every case.
• Contractor(s) inspection and test proposals - details of compliance inspections and evidence that will be carried out and recorded by contractor(s) to demonstrate compliance with the approved building warrant plans and details.
• Other inspection and evidence to be provided - details of compliance inspections and evidence that will be carried out and recorded other than by contractor(s) to demonstrate compliance with the approved building warrant plans and details eg Clerks of Works or Passivhaus certifiers etc.

On receipt of the prewarrant application, the verifier will assess whether the information provided is sufficient to enable a meaningful prewarrant discussion. If the information is insufficient, the verifier may request additional details prior to holding a scheduled meeting.

At the prewarrant meeting the verifier and the duly authorised agent will review the PreWarrant Compliance and Procedural Form. The verifier will use the form to capture salient information not already provided and ask questions to complete as much of the form as is possible. This early gathering of information will assist in the processing of the application for building warrant when it is submitted.

As this guidance does not make any changes to statutory requirements, statutory consultations with SFRS are not included as part of the prewarrant process, other than recording their requirement or not at application for warrant. Feedback on the potential value of statutory consultation with SFRS at the prewarrant stage is welcomed.

Where an application for building warrant is proposed to consist of staged applications, the verifier will consider the appropriateness of each proposed stage for the project, both generally but also in terms of potential conflicts with contractor designed portions.

The practical use of staging an application to include a fire strategy stage has become more common as a practice for complex projects. This can introduce procedural complexities as well as opportunities for surety of compliance within an overall design, which is desired to be staged. The use of staging to introduce a separate stage for the fire strategy must be agreed in advance with the building standards verifier.

Verifiers are not obliged to accept stages of warrant submission proposed by applicants, and they will assess the likelihood of failure regards procedural compliance and the strong principle in legislation that designs must be fully approved by verifiers before work commences on site. Projects should not underestimate the impact a refusal of their planned stages could have and are encouraged to engage openly in the prewarrant stage with verifiers.

Recent work by industry through the Scottish Futures Trust “Construction Quality Improvement Collaborative” indicated that many believe the Contractor Design Portions (CDP) system is being used inappropriately and too late in the process. Best practice guidance for the sector is expected.^[15]

Procedurally, work included in a building warrant application, or an application for amendment for a stage must be fully designed so that it can be assessed by a verifier or certified by an approved certifier of design.

If there is a conflict, particularly one that could result in work progressing on site without approval, either explicitly or on the basis of their experience, the verifier can refuse the proposed staging of a building warrant application.

The disruption to a project if the verifier refuses to accept the proposed staging should not be underestimated. This has been highlighted by industry and underlines the importance of honest and open prewarrant engagement.

As noted at the end of section 1.3 above, users of this guidance are encouraged to provide feedback so that legislative change can be more informed on the practicalities of elements such as staged warrants, including the use and acceptance of stages such as fire strategy.

Certification of Design must align with the stages of the building warrant, with any potential impact of CDP on warrant approvals and design certification being addressed during the prewarrant stage.

It is not expected that all details of inspection and test plans, and other matters the detail of which would be only possible following the appointment of contractors, will necessarily be completed at prewarrant stage, however verifiers will expect to be assured that these test plans will be developed and details provided before the CP can be issued with a building warrant approval.

Once satisfied, the verifier will complete the PreWarrant Compliance and Procedural Form and store it in their back-office system(s) for reference when the building warrant application is submitted. A copy will be sent to the duly authorised agent which should be used as a check list when preparing the building warrant application package, including drawings and supporting information, as well as any subsequent staged applications.

7.2 Step 2 – Building Warrant Application

Prior to submitting the initial building warrant application for a defined HRB, the duly authorised agent will check with the design team that the application proposals still align with the PreWarrant Compliance and Procedural Form, previously agreed with the verifier.

If the design proposals change from when the PreWarrant Compliance and Procedural Form was agreed with the verifier the duly authorised agent must contact the verifier to determine whether a new prewarrant meeting is required, or the form simply modified. If a new submission is required, the duly authorised agent must follow the same process as outlined earlier in section 2.1.

If the PreWarrant Compliance and Procedural Form does not need to be resubmitted (or has been amended and now aligns with the proposed BW application) it should then be submitted with the initial BW application for the project.

During the assessment of the building warrant application (and any subsequent staged application) the verifier will review the PreWarrant Compliance and Procedural Form and produce a final CP. During this warrant assessment stage the verifier will request such further information as they require to issue the CP. Failure to provide information requested will delay the issue of the building warrant just as a lack of technical detail does currently. The CP will be issued with the building warrant. This process will replace the issue of a CCNP for defined HRB’s.

The information gathered during any prewarrant stage will be valuable for completing the CP document, but it is likely that further information will need to be requested from the applicant/duly authorised agent, as Section 4 (3)^[16] of the Building (Procedure) (Scotland) Regulations 2004 allows the verifier to require the applicant to submit to them at any stage such further information as they require.

Further information will include;

• Planned project timescales – projected site start and completion.
• Building occupation or use – anticipated submission dates of any temporary occupation or use application, completed compliance plan, and completion certificate.
• Construction compliance approach – further detailed information on measures in place by the RP, design team and contractor(s) to monitor and assure. compliance with the building warrant approval and the building regulations, including the principle that all work must have building warrant approval before commencing on site

As with the CCNP process, the verifier may need to re-issue an updated CP, based on the content of further stage warrant applications or amendments, however every effort should be made to maximise the accuracy of the first issued CP.

As noted under Step 1 (2.1), a verifier decides whether they will issue a staged warrant with appropriate conditions and is entitled to refuse the applicant/duly authorised agent’s proposed staging, particularly if there are risks that portions of work would be undertaken when not approved.

One of the purposes of the CP is to hold information that will show that the building, when constructed, will comply with the approved plans and building standards, and regulations and that all parties have delivered their actions as planned, or suitable alternatives have been developed, agreed and delivered.

It should be noted that the CCNP guidance inferred that only commencement and completion notifications were mandatory under legislation. However, as noted above, section 59 (e) of the Building (Procedure) (Scotland) Regulations 2004 allows the verifier to mandate notification of completion of such other stages in the construction as they may require.

For projects in scope of this guidance, it is a mandatory requirement to notify the verifier at all notification stages contained in the CP, expecting them to be received with a focus on the verifier having adequate notice to be able to attend site to inspect the critical areas of work, as part of their reasonable inquiry.

The verifier will produce the CP, and it will be issued with the building warrant for action by the duly authorised agent and project. The verifier will also include it in part 2 of the statutory building standards register.

7.3 Step 3 – Building warrant granted and CP issued

The agreed CP^[17] is issued with the building warrant approval to the duly authorised agent identified on the application for building warrant form. A copy of the CP should also be sent to the applicant and relevant person, accompanied with information explaining the duty imposed on the relevant person to submit the completion certificate which certifies compliance with building regulations.

The identified duly authorised agent must ensure the relevant person is aware of the issue of BW and the issued CP, since it is their role to manage it during the construction process and be a key contact for the building standards verifier.

It is required that once the building warrant approval has been issued, the duly authorised agent will inform the RP and provide them with a copy of, and a briefing on the CP including advising the RP of their duty under legislation, and the potential offences to be committed.

The CP should also be disseminated widely across the design team, main and sub-contractors as a minimum. Once issued the CP becomes a live document and will be updated by the verifier to build up a clear picture of how compliant the actions and evidence collected through inspection or received through submissions are.

7.4 Step 4 – Construction Stage

As noted in the introduction, the CP issued with a building warrant approval for a HRB will include an expression of the verifiers plan to carry out ‘reasonable inquiry’.

It will also list the minimum compliance commitments that the Relevant Person must expect his design and delivery teams to fulfil, so that the submission of the Completion Certificate can be made without being considered a reckless act.

During construction the verifier will expect to be notified by the project to attend site or receive their requested compliance evidence in line with the approved CP. The duly authorised agent must manage this relationship between contractor and verifier, as well as progress on site, to ensure notifications are given, so that work can be inspected at appropriate times.

The use of mandatory notifications and planning of inspections on the CP does not preclude the verifier from carrying out ad-hoc or follow up inspections as part of their dynamic approach to reasonable inquiry. As a record of the compliance journey, all inspections and evidence gathering will be recorded on the CP by the verifier.

In addition to the planned site inspections, compliance plan trials have shown clear benefits of the verifier attending regular quality meetings or catch up forums, which are emerging as best practice in large construction projects. These allow the contractor, design team and delivery team to provide general updates and pre-empt possible issues.

Covering building standards issues first at such meetings is beneficial to allow the building standards verifiers to hear and discuss related issues and then leave the meeting prior to discussions relating to contractual matters. Virtual attendance may be suitable for attending such meetings, in certain circumstances although verifiers will try and attend site.

The Construction Quality Improvement Collaborative^[18] have produced guidance on Quality Planning and Inspection and Test Plans^[19] which can be used as a framework which can deliver compliance as well as quality evidence.

Scottish Futures Trust have also been developing valuable tools, such as their Standard Information Management Plan^[20] including information management templates which include Uniclass coding for building standards compliance evidence.

It is not expected that only the duly authorised agent will contact the verifier to attend site or discuss relevant issues related to building regulations compliance. Verifiers and projects will agree on the optimal lines of communication, though the duly authorised agent is expected to be informed and aware, and ready to step in if communications break down.

If the verifier is not notified of any planned inspection stages, or if required information is not submitted, the verifier must consider what alternative, and equal approach will be appropriate to evidence compliance. Note that any alternatives to the planned measures must be as equally robust as the original proposals so that reasonable inquiry is not frustrated. These decisions and revised requirements must be documented within the CP, with the applicant/duly authorised agent, main contractor and relevant person notified accordingly.

This could involve contractors being required to open up areas for inspection, which could result in additional costs and delays for a project, depending on the scale of the work required.

This is illustrated in recent high profile failures where sub-standard work was concealed prior to the work being inspected by verifiers. Such action can frustrate both the reasonable inquiry of verifiers and the ability of a Relevant Person to be able to lawfully submit a Completion Certificate.

It is fundamental to the local authority verifier’s role in carrying out reasonable inquiry into the certifying statements on a submitted Completion Certificate, that they are notified for inspection or actions during construction, and provided with the requested evidence, as detailed in the CP approved with the building warrant.

The Relevant Person must ensure that they are provided with sufficient additional compliance information, from their professional advisors and contractors during construction, to enable them to honestly and not recklessly submit a valid Completion Certificate Submission, which is a requirement of legislation.

There is an important distinction to be made between the level of compliance evidence a RP and their professional advisors will require and that which the building standards verifier will require.

The CP will detail the evidence required by both, but the building standards verifier will only need receipt of the evidence they have requested. If this does not fully satisfy their reasonable inquiry, due to an observed non-compliance for example, they may ask for additional evidence.

The evidence base provided to the RP and their advisors, in order to allow them to honestly submit a completion certificate, with the certifying compliance statement, will be larger than the verifiers reasonable inquiry needs.

In summary, during construction the project must:

• Notify the verifier to come to site for inspection in accordance with the issued CP.
• Provide the verifier with compliance evidence in accordance with the issued CP.
• Provide further site access and compliance evidence as the verifier requires in carrying out ‘reasonable inquiry’ beyond that which is noted on the CP.
• Provide the RP through their duly authorised agent with sufficient evidence of compliance with building regulations to allow them to submit the completion certificate without committing an offence under the Building (Scotland) Act 2003.
• Not carry out any works which do not have building warrant approval.
• Not carry out work where a building warrant has been granted, otherwise than in accordance with the warrant.

In particular carrying out work without a building warrant, or in a case where a building warrant has been granted, otherwise than in accordance with the warrant is an offence under the Building (Scotland) Act 2003 which can be committed by any person deemed to be carrying out work.

In this respect successful prosecution has been undertaken, and local authorities are expected, particularly for HRB’s to take forward reports of such offences, and any other under the Act, to the Procurator Fiscal.

Further detail can be found in the Building standards: enforcement handbook.^[21]

7.5 Step 5 – Completion Stage

The completion certificate must be submitted by the relevant person (RP). The compliance declaration on the completion certificate submission may be signed by a duly authorised agent, but it is the relevant person who submits in accordance with the requirements of the Building (Scotland) Act 2003.

Once received the verifier will have it logged on their back office system, and it will be registered on the building standards register. The verifier is required to accept or reject any completion certificate within 14 days.

One of the aims of the CPA is to introduce transparency and responsibility into the process of submitting a building warrant through to acceptance of completion certificate.

In regard to compliance with the minimum acceptable building standards, and the procedural standards of legislation, high profile failures have uncovered a culture of ignorance or indifference to the responsibility placed upon contractors and professionals through contract, as well as statutory responsibilities.

A completed Compliance Plan should clearly show responsibilities, and record the actions taken to evidence a compliant building, and the verifiers reasonable inquiry plan and actions.

The CP issued with a building warrant approval for a HRB, will be considered as an expression of the verifiers plan to carry out ‘reasonable inquiry’ and all inspections and evidence gathering should be recorded on the CP by the verifier.

The CP needs to explicitly record the planned and actual compliance evidencing actions of both the representatives of the RP and the verifier.

The RP must review the completed Compliance Plan with their representatives prior to submitting the completion certificate as part of their duties in legislation is to submit a completion certificate without being reckless.

In considering acceptance or rejection of the completion certificate submission, the CP will be used as a tool by the verifier as the basis of their reasonable inquiry. It should also be considered as of use when investigating the actions of the RP (and those contracted by them) and verifier should a subsequent non-compliance be uncovered post completion certificate acceptance.

Once the completion certificate is accepted, the final version of the CP will be recorded on the Part 2 Building Standards Register, and as such will be open for public scrutiny.

Work which is subject of a building warrant must be completed before the completion certificate is submitted since it contains a signed and dated declaration (see below) that the work is completed and complies with the building warrant and building regulations.

“I/We* submit a completion certificate in accordance with the details supplied above and with any necessary accompanying information [and where the certificate is submitted for work done under a building warrant]

This completion certificate is confirmation that the work was carried out and/or conversion* made in accordance with the building warrant.

This completion certificate also confirms that in the case of work for the construction of a building, the building as constructed complies with the building regulations; that in the case of the provision of services, fittings or equipment in or in connection with a building that the services, fittings or equipment provided comply with building regulations; and in the case of conversion of a building that the building as converted complies with building regulations”.

After completion of work the following should be undertaken

• The RP should ensure they are appropriately advised that work is completed and compliant. The contractual arrangements between the RP and their professional advisors should ensure that the RP is able to submit the completion certificate confidently and honestly. If they know the certificate contains a false statement or are reckless in that regard, they will be considered as having committed an offence.
• The RP must submit the completion certificate to the verifier.
• On receipt the verifier will register the completion certificate submission in their back office system and place a copy of it on the statutory register.
• A verifier must accept or reject a completion certificate submitted to it under the Building (Scotland) Act 2003.
• The verifier must accept the certificate if, but only if, after reasonable inquiry, it is satisfied as to the matters certified in the certificate.
• The verifier will consult the compliance plan and consider if their planned reasonable inquiry has been completed and decided whether to accept or reject the completion certificate submission.
• If the completion certificate is to be rejected, the verifier will issue the rejection notice and include the reasons for the rejection. The work should then be completed appropriately, and the RP must submit a further completion certificate.
• A copy of the rejection notice will be placed on the statutory register.
• If the completion certificate is to be accepted, the verifier will issue the acceptance notice and place a copy on the statutory register.