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2003 Chapter 8 - continued | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Section 40: Work required by notice: owner's right of entry 113. Subsections (1) and (2) establish the right of a person required to carry out work for the purposes of complying with the notices specified in subsection (1) to enter the building or adjacent land. The person must give the occupier reasonable notice first (subsection (3)). This section might apply where, for example, a landlord wishes to enter a flat which he or she owns for the purposes of carrying out repairs to comply with a defective building notice. 114. Subsection (4) makes clear that this right of entry prevails over any term to the contrary in any lease or contract. For example, under the terms of a lease, a tenant may be able to require a long period of notice for the landlord to gain entry to a premises. The right conferred by this section would override this. Section 41: Tests of materials 115. Materials tests may be required to be carried out to establish the quality and strength of a material to confirm that it is suitable for compliance with building regulations. This section makes provision for verifiers and the Scottish Ministers to require specified persons to carry out a test of materials in specified circumstances. Ministers may require such tests to be carried out only after an application has been made to them under section 3 for a direction dispensing with or relaxing a building regulation. Verifiers may require such tests to be carried out by those who have applied for a building warrant under section 9, by those who have submitted a completion certificate under section 17 and by those who are constructing a building in pursuance of a building warrant. Section 42: Evacuation of buildings 116. Subsection (1) provides that a local authority must require the evacuation of occupants of a dangerous building (or occupants of any adjacent building) where it considers they are endangered by the state of the building. Subsections (2) to (4) provide for an authority to require the removal of the occupants of a dangerous building which is to be demolished or where the occupants may be endangered by certain work which it intends to carry out on the building. Subsections (6) and (7) provide that an authority must inform persons removed from a building where it believes the reason for removing them no longer exists. Schedule 5 makes provision about the evacuation of buildings for the purposes of section 42. Section 43: Unlawful occupation of evacuated buildings 117. Section 43 creates an offence in relation to persons who have been removed from a building under section 42, or have been ejected under schedule 5, and thereafter occupy the building without having been given notice under section 42(7) (that the danger is no longer there). Section 44: Expenses 118. This section deals with the liability of persons from whom a local authority has demanded payment of expenses in relation to work carried out by that local authority to secure compliance with notices under Parts 3 and 4. For example, where a dangerous building notice requires that a building be demolished and an owner has failed to carry out the demolition, the local authority may have to carry out the demolition itself and therefore claim the expenses it has incurred from the owner. Subsections (2) to (5) make provision for liability for expenses to be restricted or transferred. Section 45: Compulsory purchase where owner cannot be found 119. This section provides for local authorities to compulsorily purchase a building and its site, where they have carried out work specified in subsection (1)(a) in relation to a dangerous building and have not been able to recover the cost of doing so because the owner cannot be found. The authorisation of the Scottish Ministers is required for the compulsory purchase (subsection (2)). Subsection (3) provides for the procedure to be followed in relation to a compulsory purchase. 120. Subsection (4) provides that, where a compulsory purchase has been made under this section, the local authority may deduct from the compensation payable the outstanding expenses in relation to the work specified in this section carried out by it on a dangerous building. Section 46: Sale of materials from demolished buildings 121. This section allows a local authority to sell any materials from a demolition carried out by it where the owner or person on whom the notice is served has failed to comply with a building warrant enforcement notice under section 27 or the demolition of a dangerous building under the authority's powers in section 29 and 30. The authority may offset any proceeds against other sums owed to the authority by the owner or any other person in respect of work under Parts 3 and 4 of the Act. Section 47: Appeals 122. Subsection (3) gives a right of appeal to the sheriff against the decisions and notices listed in subsection (1). 123. Subsection (2) allows procedure regulations to specify periods within which certain specified initial (i.e. pre-appeal) decisions should be made. Where such decisions are not taken within the specified period, the decision is to be treated, for the purposes of appeals only, as a refusal or rejection as appropriate. For example, if an owner applies for a warrant under section 8 and a verifier does not make a decision within the specified period on whether to grant one, then in order to allow the appeal procedure to start, the decision is to be taken as a refusal. 124. Subsection (4) provides that the effect of a decision or notice listed in subsection (1) is suspended until the period allowed for an appeal has elapsed or the appeal is withdrawn or finally determined. 125. Subsection (5) creates an exception to the general rule in subsection (4). Where a building warrant enforcement notice under section 27 requires construction work to be suspended, that requirement takes effect as soon as the notice is served and continues to have effect, unless quashed by an order of a sheriff, until the notice is complied with. 126. Subsection (7) provides that a sheriff's decision on an appeal under this section is final. Section 48: Penalties for offences 127. Subsection (2) sets out the penalties which apply to offences under the Act, with the exception of the offences mentioned in subsection (1). Level 5 on the standard scale is currently £5,000. Section 49: Offences by bodies corporate etc. 128. This section makes special provision in relation to offences committed by bodies corporate, local authorities, partnerships and unincorporated associations (e.g. members' clubs). Specified responsible individuals within these bodies may be liable to prosecution and punishment in addition to the body in question. Section 50: Criminal liability of trustees etc. 129. This section creates a defence for certain individuals such as trustees or liquidators in proceedings for not complying with various notices. The defence applies where the trustee, liquidator etc. has no other interest in a building and that person does not have sufficient funds in that capacity to incur the expense of complying with the notice. The defence would only apply where the person could prove the matters specified in paragraphs (a) and (b) of the section. Section 51: Civil liability 130. This section provides for the liability of anyone who breaches duties under building regulations and by doing so causes damage, including the death, injury etc. of any person. Under subsection (2), building regulations may create defences in any action for a breach of such duties. Subsection (3) provides for certain exemptions for buildings which exist before the section comes into force. Section 52: Inquiries 131. This section makes provision for the holding of public inquiries for the purpose of any functions of the Scottish Ministers under the Act and for the procedures applicable to inquiries under the Local Government (Scotland) Act 1973 to apply in any such inquiry. Section 53: Crown application 132. Subsection (1) makes provision for the Act to apply to the Crown (including Crown bodies). Subordinate legislation under the Act, however, may or may not apply to the Crown (subsection (2)). Subsection (3) restricts the liability of the Crown for contravention of any provision of the Act or subordinate legislation made under it. The Crown may not be held criminally liable, though the Court of Session may declare unlawful any act or omission of the Crown which contravenes any provision of the Act. 133. However, subsection (4) provides that persons in public service of the Crown (such as employees of Crown bodies) will be liable like other persons. 134. Subsection (5) defines the term "owner" in the application of the Act to the Crown. Section 54: Orders and regulations 135. This section sets out the procedures and scope of powers to make orders and regulations under the Act. Section 55: Meaning of "building" 136. This section defines the use of the term "building" in the Act and how buildings may be classified for the purposes of the Act and any orders and regulations made under it. Section 56: Interpretation 137. This section defines terms used in the Act. It also clarifies how a building which is in the area of two or more local authorities should be treated for the purposes of the Act. PART 6: SUPPLEMENTARY Section 57: Ancillary provision 138. This section enables the Scottish Ministers by order to make incidental and other ancillary provision for the purposes of the Act or in consequence of it. The power could, for example, be used to make consequential amendments to other legislation which are required because of the replacement of the 1959 Act by the Act. Section 58: Modification of enactments 139. This section introduces schedule 6, which makes amendments to other legislation as a result of the Act. Section 59: Commencement and short title 140. Under subsection (1) the provisions of the Act, apart from those specified (which relate to powers to make orders), come into force on a date or dates appointed by the Scottish Ministers. SCHEDULES Schedule 1 (introduced by section 1): Building regulations 141. This schedule makes particular provisions in relation to the matters about which building regulations may make provision. Paragraph 1 provides that the schedule does not restrict the interpretation of the purposes of building regulations as set out in section 1(1). 142. Paragraph 2 enables building regulations to refer to a document published by or on behalf of the Scottish Ministers or some other person. An example might be where the regulations on the conservation of fuel and power include reference to an Executive policy document on the issue. It also enables specified persons to express their approval or satisfaction for the purpose of satisfying building regulations. 143. Paragraph 3 enables special provisions to be made for buildings with a limited lifespan. An example might be temporary classrooms. 144. Paragraph 4 enables building regulations to exempt from the requirements of the regulations, either completely or partly, particular types of building, work, conversions, services, fittings or equipment. Examples might be garden sheds, car ports or small porches. 145. Paragraph 5(1)(a) and (2) makes provision for various matters to be provided for in building regulations. As paragraph 1 states, however, this does not restrict the interpretation of the purposes of building regulations as stated in section 1(1). 146. Paragraph 5(1)(b) makes provision for building regulations to require that things are provided or done in connection with buildings and to make provision as to how those things are to be provided or done. An example of this might relate to providing for the maintenance of a sprinkler system and regulating the frequency of this maintenance. 147. Paragraph 5(1)(c) makes provision for building regulations to specify the manner in which work is to be carried out. Regulations might, for example, specify that workmanship must be of an adequate standard. Schedule 2 (introduced by section 7): Verifiers and certifiers 148. Paragraphs 1 to 3 make provision in connection with the appointment and removal of verifiers and certifiers, and the terms of their appointment. Paragraph 4 provides that certifiers who are entitled to exercise such functions by virtue of membership of an approved scheme are subject to various limitations. Paragraph 5 places a duty on the Scottish Ministers to appoint a successor verifier where a verifier's appointment has been terminated, and for the successor verifier to take over the unfinished matters in relation to building warrants and completion certificates which the previous verifier had been dealing with. Paragraphs 6 to 10 make provision to avoid conflict of interest, either where a verifier is also a certifier or where a verifier has an interest in a building. Paragraph 11 defines what an "interest" means for the purposes of this schedule. Schedule 3 (introduced by section 33): Procedure regulations: particular matters 149. This schedule lists various matters which may be dealt with in procedure regulations under section 33. The schedule is not an exhaustive list of the matters for which procedure regulations may make provision. Schedule 4 (introduced by section 39): Powers of entry, inspection and testing: further provision 150. The schedule makes further provision about the rights of entry, inspection and testing conferred on the Scottish Ministers and local authorities by section 39(1) and (3). Paragraph 1 provides that entry may be demanded only at a reasonable time, and after 3 days' notice, unless the case is one of urgency. 151. Paragraph 2 makes provision in relation to the granting by a sheriff or justice of the peace to Ministers or a local authority of a warrant for the exercise of powers of entry, inspection and testing. To grant a warrant a sheriff or justice of the peace must be satisfied not only that there are reasonable grounds for entry etc. but also that at least one of the conditions in paragraph 2(2) is satisfied. Those conditions include refusal or expected refusal of entry, the premises being unoccupied or the owner absent, urgency and the case where applying for admission to the premises would defeat the object of the entry. 152. Where entry to premises has been refused or a refusal is expected, notice of the intention to apply for a warrant for entry must be given to the occupier of the premises unless the sheriff or justice is satisfied that giving such notice would defeat the object of the entry (paragraph 2(3)). 153. Paragraph 2(4) sets the period for which a warrant continues in force. 154. Paragraph 3 provides that anyone exercising a power of entry, inspection etc. must provide written evidence of the right to exercise that power if asked to do so. 155. Paragraph 4 provides for any person exercising a power of entry, inspection etc. to take other people or equipment onto the premises as necessary, subject to the conditions of a warrant where one has been granted. An example might be where a person exercising a power of inspection takes a carpenter in order to lift the floorboards. 156. Paragraph 5 provides that any person exercising a power of entry, inspection etc. must leave the premises as effectively secured as they were before the power of entry, inspection etc. was exercised. 157. Paragraph 6 creates an offence where a person who enters a premises under section 39(1) or (3) makes use of or discloses information obtained by that person on those premises with regard to any manufacturing process or trade secret. Schedule 5 (introduced by section 42): Evacuation of buildings 158. This schedule makes provision for the procedures to be followed for securing the removal from a building of any occupant who has failed to remove from a building following a requirement under section 42 on the evacuation of buildings. Paragraphs 2 to 6 provide for the local authority to apply to the sheriff for a warrant for ejection and for the procedure to be followed. The sheriff's decision is final (paragraph 7). Paragraph 8 makes provision in relation to evidence presented by local authorities in an application under this schedule. Paragraphs 9 to 12 make provision, where a person removing from a building in compliance with a requirement under section 42 or ejected from a building under this schedule is a tenant of that building, for protecting their status and rights as a tenant. Schedule 6 (introduced by section 58): Modification of enactments 159. This schedule amends and repeals provisions of various other Acts in consequence of the Act. PARLIAMENTARY HISTORY OF BUILDING (SCOTLAND) ACT 2003 The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which proceedings at that Stage took place, the references to the Official Report of those proceedings and the dates on which Committee Reports were published and the references to those Reports.
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© Crown copyright 2003 | Prepared: 7 April 2003 |