Building Standards (Compliance and Enforcement) Review Panel minutes: November 2017

Attendees and apologies

Present

• Prof John Cole, Chair

Members present

• Stewart Macartney, Blyth & Blyth
• Grant Robertson, Scottish Futures Trust (SFT)
• Gordon Spence, Local Authority Building Standards Scotland (LABSS)
• Ron Fraser, Construction Scotland
• Stephen Garvin, BRE Scotland
• Peter Haggarty, RICS Scotland
• Donald Canavan, RIAS
• Kevin Crawford, CIAT Scotland
• Alan Stark, Scottish Property Federation
• Neil Parry, Persimmon Homes
• Sarah Neary, Government of Ireland

Scottish Government

• Bill Dodds
• Jonathan Astwood
• Linda Stewart
• Ken Craig
• Scott Bell
• Shona Harper
• Paul Stollard

Apologies

• Vaughan Hart

Items and actions

1. Welcome, introductions and apologies

The Chair welcomed members of the Review Panel to the first meeting.
Apologies were received and round table introductions made.

1.1 Remit

A draft remit was circulated to members who were asked to consider the content and agree/amend as necessary at the end of the meeting.

1.2 Procedures

• The role of the review panel was explained. It was agreed that additional members may be invited to assist the Panel, e.g. SER , Heads of Planning (HOPs), NHBC, where it is considered that their experience and knowledge could assist the Panel. This may include attending an individual meeting, or providing papers, on a particular subject.
• The linkage with the Review Panel on Building Standards (Fire Safety) in Scotland, being chaired by Paul Stollard, was explained.
• There was recognition that the Panel’s timetable may change as evidence emerges from the Grenfell Tower Public Inquiry and the Independent Review of Building Regulations and Fire Safety in England.
• There was a discussion on confidentiality and it was agreed that notes would be taken of the meeting and these would be made public once agreed by all members. The notes would present the collective views and consensus of the Panel. Views and opinions would not be attributed to individual members.

2. Pre-meeting Questionnaire

Prior to attending the meeting, panel members were presented with responses from a recent survey carried out by the Building Standards Division (BSD) on issues surrounding the current building standards system. This was split into three sections to clarify the views from: panel members, BSD stakeholders and Local Authority (LA) Building Standards Managers.

The responses were not individually discussed by the panel, however a large number of comments received through the survey reflected the findings contained within the Cole Report. A synopsis is given below:

What is working well?

Panel members supported the pre-emptive system, verification by local authorities and certification- particularly SER scheme. Stakeholders also liked the ability to get a Ministerial view, impartiality of verifiers and the CCNP process. Building standards managers also liked pre-emptive system, impartiality of verifiers, local knowledge and experience of verifiers and CCNPs.

What could be improved?

Panel members thought that the roles and responsibilities of those using the system should be better defined and enforcement should be strengthened. CCNPs should be improved and under resourcing of local authorities was causing issues. Stakeholders in addition felt that there was insufficient site inspection, fees for building warrants should be ring fenced within local authorities and certification should be better promoted. Building standards managers in addition believed that eBuilding Standards was causing an additional administrative burden, CCNP’s should be made mandatory and there was weak management of some building standards services.

The following sections reflect the comments and opinions raised for each of the four key themes, which had been agreed by the Panel members.

3. Building Standards System

3.1 Legislation

• The current legislation was considered good, but in some cases it is not being applied appropriately and there are inconsistencies in the way that local authorities administer the system.
• It is nearly 15 years since the introduction of the 2003 Building (Scotland) Act and the view at that time was that a ‘one size fits all’ system was appropriate. However with modern procurement methods, building processes and wider use of innovative products there is a need to review whether a change is needed.
• One suggestion was that there should be differentiation made on the route to compliance with building regulations dependent on project type. Suggested groupings were - domestic alterations and extensions (80% of all warrants fall into this category), volume house building, large public buildings and buildings in use.
• At the present time the Building standards system does not include consumer protection. There may be an opportunity to review this with the powers in the 2016 Scotland Act however this would be a fundamental change and require new primary legislation.
• A question was raised on whether local authorities should give notice to agents/applicants of existing valid building warrants pending expiry, in an effort to complete work within the 3 year time frame, and obtain a completion certificate. It was emphasised that without a completion certificate submission no declaration of compliance with building regulations by the ‘relevant person’ has been made.

3.2 Pre-emptive system

• In an effort to speed up the application process, should verifiers be required to respond to an application within 4/5 week period, otherwise work can start? – Consensus of the Panel was “no” as existing pre-emptive system was considered good and saves potential abortive work. Additional comments included that: “They were not comfortable with English system; English architects envy Scottish system”.
• Work which is undertaken on site that is altered from the approved plans places a burden on LA verifiers work load. In addition, verifiers are being advised of work starting on site prior to issue of warrant. Should the existing pre-emptive system be strengthened in an attempt to reduce such instances? There was a general feeling that greater use of staged warrant applications could speed up the approval system.

3.3 Roles and Responsibilities

• There was agreement that role of all actors in the process should be clearly defined and understood and in particular the role of the “relevant person” in ensuring compliance with building regulations was fundamental to ensuring good building outcomes should be made clearer.

3.4 Inconsistency of Verifier Approach to Assessment

• The current system is designed to allow a functional/flexible way of meeting standards. However, there are inconsistent approaches between LAs, and in some cases individual staff members within the same LA, regarding interpretation, processes, level of inspection, etc. It was considered that LABSS guidance is not being followed by all LAs.

3.5 Complexity of Guidance

• Since the introduction of the current building standards system, warrant application process is taking longer, due to additional details and information being requested at warrant application stage. This has resulted in a change of approach by BS surveyors, who previously used a “catch it on site” attitude and focused less on application process. It was felt that in some cases that the introduction of eBuildingstandards has compounded this issue. The level of details and information required relating to energy proposals are considered excessive, which subsequently slows the application process.

4. Verification

The role and responsibilities of the verifier in providing the independent checking regime through the design and construction phases

4.1 Verifier Performance

• Time taken to obtain warrant approval from some local authorities is resulting in the cancellation of projects and job losses.
• Delays in getting a verifier to undertake a site inspection is delaying project programmes.
• In some cases it was felt that the ability to hold pre-warrant discussions with LA verifiers would help to speed up application process and save abortive work for designers.
• Should LAs engage with applicants more and promote Customer Agreements? (Evidence indicates that they are currently not being fully utilised)
• Should verifiers prioritise larger projects that have economic significance within their own LA?
• Concerns by industry of the time taken to check structural calculations. This was attributed to calculations submitted that required third party checking rather than those within the SER scheme.
• Concerns raised by industry regarding the length of time taken to check fire engineering proposals.
• System doesn’t readily accommodate modern methods of construction and procurement processes.
• Design process now delayed by contractors appointing 3rd parties for specific items of construction, e.g. glazing components, therefore architects can’t finalise designs until these details are forwarded. This can further delay warrant application process, but can result with the product being manufactured and installed prior to issue of warrant. This can also result with less design input and control by architects.
• The use of pre-fabricated units is becoming more popular. Should consideration be given to how they can be certified?

4.2 Workload Allocation and Competency

• Measures should be in place to ensure that projects are allocated to the correct staff with appropriate qualifications and experience, depending on the complexity of the work. This is applicable to both the plan assessment process and inspecting work on site.

4.3 Lack of Consistency on Site Inspections

• Lack of consistent approach by verifiers on site, e.g. requesting particular detailing of specific items of work.
• The level and quality of site inspections should be investigated, as evidence would suggest that these require to be improved and quality assurance by contractors cannot be relied on.
• Verifiers have the authority to inspect, but do not have legal responsibility in the event of a dispute arising.
• Reasonable inquiry has failings.
• Better quality management regimes are required on site, as it would appear that adequate site inspections are not being undertaken by staff with supervisory responsibilities. It was considered that there may be a need for clerk of works on certain project types.
• A question was raised on whether it is the role of the verifier to undertake any site inspections? Should they only require to assess evidence provided to them to determine compliance and accept completion certificates?
• For housing sites consisting of multiple units, it is likely that “sample inspections” will be carried out by verifier – should this be highlighted on acceptance of completion certificates?
• For public contracts, could a contractor draw up a self-inspection programme that could be agreed with verifier, and act as a “self-certified CCNP”?
• House building industry has Q&A measures, but evidence would suggest that these can be used as “tick-box exercise” without appropriate checks being taken.

4.4 Inappropriate First Response to meet Deadlines (Plan Assessment)

• Verifiers sometimes issue an incomplete list of comments for warrant applications to meet response deadlines, but this hides delays, in carrying out a full assessment.
• Certain aspects of plans can be particularly scrutinised during assessment of warrant application, but these specific items not necessarily inspected during the construction process

4.5 The skills and resourcing of verification services

• Should consideration be given to forming a “regionalised” building standards system, even if this was only for more complex applications? (Similar to Scottish Fire & Rescue Service and Police Scotland). Alternatively, form a “Central Unit”, where all applications are submitted? However, concern was raised that this could result in specific aspects of design being missed, by lack of local knowledge.
• Staffing resources of LA building standards (BS) are giving concern. Their strategic function needs strengthened by having appropriate levels of experienced and qualified staff.
• Local authorities have seen a dramatic cut in resources following introduction of 2003 Act (and subsequent economic downturn). Furthermore, due to uncertainty of annual fees income, local authorities have been unwilling to commit to providing additional posts. This is compounded by private sector offering higher salaries, which can attract experienced staff from LAs.
• Should building warrant application fees be increased to cover additional site inspections, which may be considered necessary to check compliance?
• Should verifier staff specialise in specific areas of work? – e.g. Domestic/Non Domestic

4.6 Training and Skills

• Additional difficulties arise from lack of building standards courses being offered in places of further education.

5. Certification

5.1 The role and responsibilities of the relevant person, who signs the completion certificate, to certify compliance with the building warrant and building regulations.

• Contractors should not rely on LA verifiers to check suitability of work undertaken. They should have appropriate measures in place to check compliance with building standards.
• Should it be made mandatory for a contractual completion certificate to be subject to an acceptance of a completion certificate issued by local authority?

5.2 The actions by the relevant person throughout their project, including the role of self-certification and third-party certification.

• Additional incentives are considered necessary to promote the use of certificates of construction.
• Is there scope for extending certification schemes?
• Should a mandatory builder’s registration scheme be introduced?
• There is confusion around the term ‘Certification’ and different references to “completion certificates”, e.g. building standards completion certificate, temporary occupation or use certificate, a contractual availability certificate, etc.?

6. Enforcement and sanctions

6.1 The role of the local authority in enforcing compliance

• The Panel were advised of the findings of the Cole Report regarding the number of schools that were occupied prior to obtaining an acceptance of completion certificate, or temporary occupation or use certificate.
• The Panel sought clarification of the prevalence of buildings being occupied without an acceptance of completion certificate and what levels of enforcement are used by LAs, in such instances.
• LAs are reluctant to take formal enforcement action, and a previous case was cited where a supermarket had opened without obtaining the required approvals. In this case the sheriff took no further action as he was of the opinion that there was no risk to the occupiers. Verifiers are increasingly finding that similar situations can be better resolved by negotiating and working with the applicant to resolve such situations, rather than taking enforcement action.
• It was agreed that one of the objectives, by all parties, when carrying out building work is to ensure that the work is carried out in compliance with building regulations. With regards to building standards verifiers, this could involve focussing resources on more meaningful inspections, at critical stages of construction (structural components or fire stopping for example), compared to what could be considered of lower risk, e.g. drainage inspections.
• It was agreed that agents/owners/contractors should be aware of their responsibilities to contact verifiers at appropriate times to allow CCNP inspections to be carried out and also to obtain an acceptance of completion certificate prior to a building being occupied. It was highlighted that where verifiers are not notified of a requested CCNP inspection, they can be responsible for any damage resulting from requesting works to be opened up, as such inspections are not mandatory. This may have a bearing on whether or not a verifier would indeed ask for a disruptive inspection.

6.2 Review of enforcement sanctions

• Clarification was requested on how verifiers pursue situations where buildings are occupied without the requisite completion certificate approvals and whether existing financial penalties were an adequate deterrent.
• Generally, a letter is sent to the occupier/owner of the property, by the LA, advising them that they are committing an offence under the Building (Scotland) Act and requesting that the situation was remedied as soon as possible; it was agreed that existing levels of fines would not act as a deterrent.
• Subsequent discussions questioned whether greater financial penalties would deter such situations, or whether there should be greater emphasis put on the repercussions relating to insurance cover.
• The Panel were advised that that the Health & Safety Executive have powers to issue a stop notice under their legislation and charge high level fees to re-inspect sites, where non-conformity has occurred; should this be a consideration for the building standards system?

7. Remit

At the conclusion of the meeting the remit was discussed and agreed, this is:

1. To review building regulation legislation, in particular the procedure regulations, and supporting guidance in light of the findings of the Report of the Independent Inquiry into the Construction of Edinburgh Schools (February 2017) and the Grenfell Tower fire in London in June 2017.
2. To comment on the appropriateness and relevance of the current building standards system, including verification, certification and enforcement.
3. To consider procedures used in other countries.
4. To provide an opinion of whether any changes are necessary.
5. To keep this under review as further evidence emerges, to assist meeting the Ministers wishes.

Objective

The objective was agreed:

To recommend what changes might be necessary, to ensure the health and safety of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings.

It was agreed that:

• The next two meetings would be set by the Doodle Poll currently being circulated,
• That this was a convenient venue for those attending and should be considered for future meetings.

The Chair thanked everyone for their valuable time, commitment and encouragement.