The Scottish Government is seeking views on whether stricter sanctions would improve building standards.

In its Building Standards Enforcement and Sanctions Consultation, the Scottish Government sets out its proposed changes relating to various provisions of the Building (Scotland) Act 2003 (Act), namely:

  • Occupation or use without completion certificate (Section 21)
  • Building warrant enforcement notices (Section 27), and
  • Penalties for offences (Section 48).

But why are changes needed and what exactly is being proposed?

The reasons for change

The aim of the proposed changes is to "strengthen existing enforcement powers used by local authorities (LAs), and increase existing penalties for offences to act as a deterrent to persons who commit offences under the Act". They would also bring Scotland more in line with the position in England and Wales, which was recently overhauled by the Building Safety Act 2022 (BSA).

The Act (which has been referred to by the Scottish Government as "the equivalent" of the Building Act 1984 in England and which has now amended by the BSA) established the building standards system in Scotland in 2003.

The Building Standards Division within the Scottish Government has the sole responsibility to ensure that changes are made to the legislation where necessary, and is seeking views on its proposals "to ensure that new buildings and work to existing buildings when constructed meet the requirements of building standards in Scotland, and where they do not that the local authority has sufficient enforcement powers to take action." 

The proposed changes in brief

As mentioned above, three sections of the Act could potentially change. We have summarised the key changes below:

  1. Occupation or use without completion certificate (s21): at the moment, local authorities can take action against "any person who occupies or uses a building" without a completion certificate.

It is proposed that building owners should be included in the offences for use or occupation of a building without a completion certificate. This would allow local authorities to take action against owners directly, as opposed to only those who are using or occupying the building.

  1. Building warrant enforcement notices (s27): it is currently an offence to carry out work without, or not in accordance with, a building warrant. Where this situation arises, local authorities can serve a notice to remedy the situation.

There are number of amendments proposed in relation to this:

  • Removal of work: the current wording of the Act does provide for work to be removed. Introducing this would give local authorities more flexibility with building owners on how to remedy situations where removal is the most appropriate option.
  • Stopping work: there is the view from local authorities that sending a "stop notice" would be a more effective deterrent than the current "suspend notice".
  • Introduction of a time limit: there is currently no time limit for local authorities to take action on work subject to a building warrant or building regulations. Introducing a time limit of 10 years for local authorities to serve notices (requiring removal or alteration of non-compliant work) would bring Scotland in line with the position in England and Wales, recently amended by the BSA.
  1. Penalties for offices (s48): carrying out work without, or not in accordance with, a building warrant is currently an offence which can attract a fine "not exceeding level 5 on the standard scale". A level 5 fine under the Criminal Procedure (Scotland) Act 1995 is £5,000 - £10,000. This level of fine has been deemed "fit for purpose for low-risk projects e.g. alterations and extensions to domestic buildings", but not for higher risk types of building (HRBs) which are defined in the consultation as:
    • Domestic building or residential building with any storey at a height of more than 11 metres above the ground
    • Educational establishments (schools, colleges and universities), community/sport centres and non-domestic buildings under local authority control/where they have an interest in a building
    • Hospitals, and
    • Residential care buildings.

The proposed amendments for HRBs are therefore:

  1. Increasing the maximum level of fine to £50,000
  1. Introducing a two-year custodial sentence (in line with the position in England and Wales under the BSA), and
  1. Option for fine and/or custodial sentence.

From the results of public consultations carried out in 2018 and 2022, there appears to be a general consensus that fines for non-compliance with building regulations should increase. We therefore do expect to see some strengthening of the sanctions available for non-compliance with the Act in due course.

How to respond

The Scottish Government consultation is open until 22 January 2024, so if you want to respond, you will need to do so quickly.

You can find the consultation here, and you should read what it says in full as this article provides a brief summary, whereas the consultation itself contains more detail about the Scottish Government's thinking and the changes put forward.

For more visit our Building Safety Hub or speak to Lisa Dromgoole who leads our Scottish Construction team. 

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.