Building (Scotland) Act 2003 | |
2003 Chapter 8 - continued | |
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Section 17: Completion certificates 54. This section makes provision for procedures to be followed by the relevant person (defined in subsection (10)) on completion of work or of a conversion for which a building warrant has been granted. Subsections (1) and (2) provide that the relevant person must submit a completion certificate certifying that any work or conversion has been carried out in accordance with the building warrant. The certificate must also certify that following any work, conversion or provision of services, fittings or equipment, buildings comply with building regulations. In the case of a conversion of part of a building, it is the part which was converted which must comply with building regulations. Subsection (3) provides that it is the building regulations in force at the time of the building warrant application which apply, i.e. not any later version in force when the completion certificate is submitted. 55. Subsection (4) provides that, in relation to any work or conversion which is complete and has been carried out without a building warrant, the relevant person must still submit a completion certificate. Subsection (5) provides that the certificate in such a case must certify that the work or conversion was carried out in accordance with building regulations and that the result complies with building regulations. Subsection (6) provides that in such a case it is the building regulations in force at the time the completion certificate is submitted which apply i.e. not those in force at the time the building work etc. was carried out, if different. The submission of a completion certificate under these provisions does not affect any liability incurred under section 8(2). 56. Subsection (7) provides that in relation to work carried out in implement of various notices under Parts 3 and 4 of the Act, owners must submit completion certificates. The certificates must certify that work has been carried out in accordance with the requirements of the notice in question. 57. Subsection (8) provides that where local authorities carry out work to comply with the notices referred to in the subsection, the owner does not have to submit a completion certificate to a verifier. 58. Subsection (9) provides that where a building warrant enforcement notice served under section 27 in relation to a building constructed without a building warrant requires the owner to submit a completion certificate, the certificate must certify that the building conforms to building regulations as they are in force when the completion certificate is submitted, i.e. not the version in force when the building was constructed. 59. Subsection (10) defines the relevant person for the purposes of section 17. Section 18: Completion certificates: acceptance and rejection 60. This section makes provision for the acceptance or rejection of completion certificates by a verifier. Subsection (2) requires a verifier to undertake reasonable inquiry before accepting a completion certificate. In particular cases, procedure regulations under section 33 may require a verifier to consult specified persons before accepting a certificate (subsection (3)). Under subsection (4) a verifier must send a copy of the completion certificate, whether accepted or rejected, to the local authority for registration in the building standards register (unless the verifier is the local authority - subsection (5)). This must be accompanied by the documentation set out in this section. The owner must also be informed of the acceptance or rejection of the certificate and of any continuing requirements imposed under section 22. Section 19: Certification of construction 61. Subsection (1) makes provision for the submission to a verifier of a certificate issued by an approved certifier of construction. This would certify that an element of construction, such as the plumbing or electrical work, complies with the appropriate building regulations. Subsection (2) defines the reference to building regulations for the purposes of subsection (1). The certificate would be submitted with a completion certificate and under subsection (3) the verifier is obliged to accept facts certified in the certificate from the approved certifier of construction. Subsection (5) defines the terms "certificate" and "construction" as they apply in this section. The latter definition is broader than the general definition of "construction" in section 56(1). 62. Subsection (4) creates an offence in relation to an approved certifier of construction who knowingly or recklessly issues a certificate of construction which contains a statement which is false or misleading in a particular. Section 20: Completion certificates: offences 63. This section creates offences in relation to persons submitting completion certificates and verifiers accepting completion certificates. A person submitting a completion certificate must not knowingly make false or misleading statements or make such statements recklessly. Verifiers must not grant a completion certificate knowing that a statement contained in it is false. Section 21: Occupation or use without completion certificates 64. This section contains provision to prevent occupation or use of a building where a construction or conversion of the building requiring a building warrant is being or has been carried out, and no completion certificate has been accepted. 65. Subsections (3) and (4) make provision for a verifier to grant and extend permission for temporary occupation of such a building on application by the owner or person on whose behalf the work is carried out. Copies of such permissions must be sent to the local authority. 66. Subsections (5) and (6) create an offence of occupying or using a building in respect of which a completion certificate has not been accepted. The offence does not apply where there is a temporary permission under subsection (3) or to occupation of the building in connection with the construction or conversion. The offence applies only to occupation or use where the person either knows that a completion certificate has not been accepted or pays no regard to whether one has been accepted. 67. Subsections (7) to (9) make provision for a local authority to seek, by interdict, to prevent occupation or use of such a building and for a court to grant such an interdict. Section 22: Imposition of continuing requirements by verifiers 68. Section 22 provides for a verifier to impose continuing requirements where the verifier grants or makes an amendment to a building warrant, or accepts a completion certificate for work which did not have a necessary building warrant. As with section 2, which permits continuing requirements to be imposed by building regulations, the purpose of imposing the requirements is to secure that the purposes of building regulations are not frustrated. Where verifiers consider it necessary to impose such requirements for this purpose, they must do so. Any such requirements imposed under this section must state the provision of building regulations to which they relate. Section 23: Discharge and variation of continuing requirements imposed by verifiers 69. Section 23 provides for verifiers to vary or discharge a continuing requirement which was imposed by a verifier. (The verifier cannot vary or discharge continuing requirements imposed in building regulations.) They must discharge a requirement on application if they are satisfied that the building complies with the building regulations that apply when the application is made, and (a) in the case of the discharge of a continuing requirement, the requirement is no longer necessary, or (b) in the case of the variation of a continuing requirement, the variation will not result in the purposes of building regulations being frustrated. The section also provides that continuing requirements imposed by verifiers cease to have effect if a subsequent building warrant is granted or a completion certificate is submitted under section 17(4) (i.e. where no building warrant was applied for in relation to the relevant building or work). Subsection (4) provides that any such subsequent building warrant or completion certificate can contain further continuing requirements. Section 24: Building standards registers 70. Subsection (1) places a duty on local authorities to maintain registers for their areas with information about applications for building warrants, completion certificates and other matters required by regulations. Subsections (2) and (3) make provision for regulations about the content of registers and the form and manner in which they are to be kept. Subsection (4) states that the register must be available for public inspection at all reasonable times. PART 3: COMPLIANCE AND ENFORCEMENT Section 25: Building regulations compliance 71. Subsection (2) makes provision for the Scottish Ministers to direct local authorities to secure that buildings of a particular description comply with a particular provision of the building regulations. They may issue such directions for the purposes set out in subsection (1) (which are the same as the purposes in section 1(1) in relation to the making of building regulations). To comply with a direction, local authorities may serve a building regulations compliance notice, and must do so if the direction so requires (subsection (3)). Except where a direction is mandatory, local authorities are free to decide how to comply with the direction. They could, for example, choose to encourage owners of the type of building in question to improve their buildings voluntarily, perhaps by offering financial incentive schemes. 72. Subsection (4) provides that a building warrant is required for work to comply with a building regulations compliance notice if it would normally be required for that work under section 8. Subsection (5) provides that where the local authority issuing such a notice is a verifier, the notice may require any relevant building warrant application or completion certificate to be submitted to that local authority, as opposed to any other verifier. Subsection (6) provides that a later date for complying with the notice may be substituted once a building warrant application has been made. 73. Subsection (7) creates an offence where the owner has not complied with the notice by the set date and in such cases allows local authorities to carry out the work specified in the notice and to recover the costs from the owner of carrying out that work. 74. Subsection (8) provides that a local authority does not have to apply for a building warrant where it is carrying out work to comply with a building regulations compliance notice because the owner has not done so by the set date. The authority must, however, register a completion certificate in the building standards register to certify that the building complies with the provision of the building regulations specified in the notice. 75. Subsection (9) makes provision for a local authority to withdraw or amend a building regulations compliance notice before or after it has taken effect. Subsection (10) provides that a local authority may issue a further such notice even if it has already withdrawn one. Section 26: Continuing requirement enforcement notices 76. This section provides for a local authority to take enforcement action where an owner appears to be failing to comply with a continuing requirement imposed under section 2 or by a verifier under section 22. The local authority may serve a continuing requirement enforcement notice as set out in subsection (2). 77. Subsection (3) creates an offence where the owner has not complied with the notice by the set date and in such cases allows local authorities to carry out the work specified in the notice and to recover the costs from the owner of carrying out that work. Where the local authority has carried out such work, subsection (4) provides that the authority must register a completion certificate in the building standards register to certify that the work has been completed in accordance with the notice in question. 78. Subsection (5) makes provision for a local authority to withdraw or amend a continuing requirement enforcement notice before or after it has taken effect. Subsection (6) provides that a local authority may issue a further such notice even if it has already withdrawn one. Section 27: Building warrant enforcement notices 79. This section makes provision for local authorities to take enforcement action where it appears to them that work in respect of a building has been carried out without a warrant or not in accordance with a warrant or where a building with a limited lifespan has not been demolished by the due date (subsection (1)). 80. Under subsection (2) a local authority may serve a notice requiring the relevant person, as appropriate, to obtain a building warrant, obtain acceptance of a completion certificate, secure that the work conforms to a warrant or obtain an amendment to a warrant, or demolish the building. Such notices can be served only in the circumstances set out in subsection (1). The obtaining of a building warrant or an amendment to a building warrant, or the submission of a completion certificate, in compliance with the notice does not affect any liability incurred under section 8(2). 81. Subsection (3) defines the relevant person for the purposes of section 27. 82. Subsection (4) provides that where the local authority issuing such a notice is a verifier, the notice may require any relevant building warrant application or completion certificate to be submitted to that local authority, as opposed to any other verifier. 83. Subsection (5) sets out the information which must or may be contained in such notices. Subsection (6) makes allowance for the timescales for compliance to be altered if an application is made under section 3 for a direction dispensing with or relaxing building regulations. 84. Subsection (7) creates an offence where the person on whom the notice is served has not complied with the notice by the set date and in such cases allows local authorities to carry out the work specified in the notice or to secure that the work complies with building regulations and to recover the costs from the person of carrying out that work. 85. Subsection (8) provides that a local authority does not have to apply for a building warrant where it is carrying out work to comply with a building warrant enforcement notice because the owner has not done so by the set date. The authority must, however, register a completion certificate in the building standards register to certify that the work complies with the building regulations, or that the necessary work has been carried out. 86. Subsection (9) makes provision for a local authority to withdraw or amend a building warrant enforcement notice before or after it has taken effect. Subsection (10) provides that a local authority may issue a further such notice even if it has already withdrawn one. PART 4: DEFECTIVE AND DANGEROUS BUILDINGS Section 28: Defective buildings 87. This section makes provision for local authorities to serve a notice on an owner of a building to rectify defects in order to bring the building into a reasonable state of repair, having regard to its age, type and location. This power replaces that in section 87(1) of the Civic Government (Scotland) Act 1982. It might be used, for example, in the case where a leaking roof risked damaging the structure of a building, to require the owner to make it resistant to moisture. 88. Under subsections (3) and (4) a local authority must specify in a defective building notice the dates by which works must be started and completed and may specify particular steps which the owner must take to comply with the notice. 89. Subsection (5) provides that a building warrant is required for work to comply with a building regulations compliance notice if it would normally be required for that work under section 8. Subsection (6) provides that where the local authority issuing the notice is a verifier, the notice may require any relevant building warrant application or completion certificate to be submitted to that local authority, as opposed to any other verifier. Subsections (7) and (8) provide that the dates by which work to comply with a notice must start and be completed may be amended when a building warrant application is made in respect of the work. 90. Subsections (9) and (10) create an offence where an owner has either not started or not completed work by the relevant specified dates and in such cases permits local authorities to carry out the required work and to recover expenses incurred by it from the owner. 91. Subsection (11) provides that a local authority does not have to apply for a building warrant where it is carrying out work to comply with a defective building notice because the owner has not failed to do so. The authority must, however, register a completion certificate in the building standards register to certify that the necessary work has been carried out. 92. Subsection (12) makes provision for a local authority to withdraw or amend a defective building notice before or after it has taken effect. Subsection (13) provides that a local authority may issue a further such notice even if it has already withdrawn one. Section 29: Dangerous buildings 93. This section places duties on a local authority where it appears to it that a building presents a danger to people in or about that building, to the public generally, or to adjacent buildings or places. Under subsection (2) the authority must carry out work to prevent access to the dangerous building and adjacent places and to protect the public. Subsections (3) and (4) give a local authority power, where it considers that urgent action is necessary to remove or reduce a danger, to carry out the necessary work, including demolition. In cases of urgency, the subsection recognises that it may not be possible to give prior notice to the owner. 94. Subsection (5) provides that a local authority does not require a building warrant for work carried out in relation to dangerous buildings under subsections (2) and (3) but must register in the building standards register a completion certificate certifying that the work has been carried out. 95. Unless work carried out under subsection (3) removes the danger, the local authority must serve a dangerous building notice on the owner (subsection (6)). Section 30: Dangerous buildings notices 96. Subsections (1) and (2) set out the purpose of a dangerous building notice and provide for the notice to specify dates by which work to comply with the notice must be start and completed. Subsection (4) creates an offence where an owner has either not started or not completed work by the specified dates and in such cases permits the local authority to carry out the required work and to recover expenses incurred by it from the owner. Subsection (5) provides that no building warrant is required for work to comply with a dangerous building notice and that any work which a local authority may carry out in order to comply with the notice does not require a building warrant, although where the authority carries out the work, it must register in the building standards register a completion certificate certifying that the work has been carried out in accordance with the notice. 97. Subsection (6) makes provision for a local authority to withdraw or amend a dangerous building notice before or after it has taken effect. Subsection (7) provides that a local authority may issue a further such notice even if it has already withdrawn one. PART 5: GENERAL Section 31: Building Standards Advisory Committee 98. This section makes provision for the continuation of the Building Standards Advisory Committee, established under the 1959 Act. It sets out the purpose of the committee and places a duty on the Scottish Ministers to consult relevant interests before appointing members to it. It also makes provision for Ministers to make regulations with regards to specific aspects of the committee and for Ministers to pay members remuneration and allowances. Section 32: Exercise of local authority functions 99. Under subsections (1) to (3) the Scottish Ministers may give directions to local authorities about their functions under the Act. Under subsections (4) and (5) Ministers may, if they so direct, exercise local authority functions under Parts 3 and 4 of the Act in place of that local authority. Ministers could, for example, use this provision to compel a local authority to repair one of its own buildings (e.g. the city chambers) where it refuses to do so. Section 33: Procedure regulations 100. This section sets out the power of the Scottish Ministers to make regulations relating to procedures to be followed in connection with various matters under the Act including applications, completion certificates, the issue of certificates by certifiers, functions of local authorities under Parts 3 and 4 of the Act and the appointment, removal and exercise of functions of verifiers and certifiers. In addition to the general matters listed in subsection (1), subsection (2) provides for the regulations to deal with the specific matters set out in schedule 3. 101. Subsections (3) and (4) make provision for the possibility of combining applications under the Act and planning applications in a single application. This would allow for a joint building warrant and planning application. Section 34: Reports and information 102. Subsection (1) places a duty on local authorities, verifiers and certifiers to provide the Scottish Ministers with reports or information on their functions under the Act. Ministers might, for example, require information in relation to performance measures set by them. 103. Subsection (2) creates an offence where any local authority, verifier or certifier knowingly or recklessly provides information under subsection (1) which is false or misleading. Section 35: Scheduled monuments, listed buildings etc. 104. Subsection (2) places a duty on local authorities to consult before serving notices under Parts 3 and 4 of the Act on persons in relation to the types of buildings listed in subsection (1) or carrying out work to a dangerous building of any of those types. For example, where a listed building presents a danger to the public, a local authority must consult the Scottish Ministers (which would ensure that Historic Scotland was consulted), the planning authority and any other body which they think fit, before the authority can serve a dangerous building notice on the owner. In the case of a dangerous building, consultation is required only if it is reasonably practicable. Subsection (4) provides that a requirement in a notice under Part 3 or 4 of the Act to carry out work in relation to buildings listed in subsection (1) has effect only where it is consistent with the Acts specified in that subsection e.g. a notice served on a listed building must be consistent with the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. Section 36: Forms 105. This section makes provision for the Scottish Ministers to make regulations setting out the form and content of any document used under the Act. Such regulations could, for example, provide that building warrants are to have the same appearance across Scotland and are to include the same information. Section 37: Service of notices etc. 106. Subsection (1) provides that where a local authority serves a notice under sections 25 to 29, it must also serve a copy on the owner, occupier and any other person having an interest in the building. 107. Subsection (2) applies the provisions in relation to notices under section 192(1)-(4) of the Local Government (Scotland) Act 1973 to notices etc. served under the Act. 108. For the purpose of enabling any notice to be served, subsection (3) requires the persons specified in the subsection to provide information on those who have an interest in the relevant building. Subsection (4) creates an offence of refusing or failing to give this information or deliberately or recklessly making false or misleading statements in respect of it. Level 3 on the standard scale is currently £1,000. Section 38: Fees and charges 109. This section enables Ministers to make regulations setting fees and charges in respect of functions performed under the Act. Section 39: Powers of entry, inspection and testing 110. This section gives the Scottish Ministers and local authorities powers to enter and inspect buildings and premises and carry out tests on materials in relation to certain functions under the Act. Ministers' powers in this regard are restricted to their function under section 3 of granting a direction dispensing with or relaxing a building regulation (subsections (1) and (2)). Local authorities may exercise these powers in relation to their powers in Parts 3 and 4 (subsections (3) and (4)). 111. Subsection (5) requires owners and occupiers of premises to provide the relevant authority with such assistance and information as may reasonably be required with regard to the authority's powers of entry, inspection and testing. Subsection (6) creates an offence of not complying with a requirement in subsection (5) and of intentionally obstructing a person exercising such powers. Level 3 on the standard scale is currently £1,000. 112. Schedule 4 makes further provision on the exercise of powers under this section. |
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