Building (Scotland) Act 2003 (asp 8) received Royal Assent
on 26 March 2003 and (with the exception of the sections on
building standards assessment and Crown application) comes
into force on 1 May 2005. It is the most significant reform
of the law relating to building standards since the Building
(Scotland) Act of 1959 which this Act repeals.
Under the new regime, the concepts of building regulations,
building warrants, completion certificates and enforcement
powers continue but the Act introduces significant changes
to the ways in which standards on building work in Scotland
are set and enforced, while still retaining the primary objectives
of the building standards system of ensuring health and safety
and the interests of people affected by buildings.
Scottish Ministers have power to make building and procedure
regulations and other secondary legislation required to fulfil
the purposes of the Act, including setting building standards,
securing the convenience of persons in or about buildings,
and dealing with dangerous and defective buildings.
Building regulations may be made for the purposes of fuel
and power conservation, an increasingly important issue with
the DTI having published an Energy White Paper in February
2003, and the European Energy Directive on the energy performance
of buildings due to come into force on 4 January 2006. Furthering
the achievement of sustainable development is also one of
the principal policy objectives of the Act, allowing regulations
to be made that would help to reduce the depletion of environmental
Building regulations may impose "continuing requirements"
on owners of buildings to which regulations apply, to ensure
that the purposes of any designated provision of the regulations
are not frustrated. This does not mean that continuing requirements
will be imposed on individual buildings when building warrant
is granted, but that the building regulations themselves can
impose continuing requirements, for example a requirement
to periodically test and maintain a smoke alarm or sprinkler
A major feature of the new regime is the replacement of compulsory
technical standards with expanded functional standards, contained
in building regulations, supported by non-mandatory guidance
documents, making the new system more flexible than the previous
one. Only the building regulations will have mandatory force,
while the guidance documents will provide practical guidance
on the requirements of any provision of building regulations.
Although these guidance documents will not carry statutory
force, and it is not an offence to fail to comply with them,
proof of compliance with such guidance may be relied on to
prove compliance with building regulations in any civil or
criminal proceedings for contravention of building regulations.
One of the main procedural changes is that local authorities
can no longer grant relaxations. Since the mandatory requirements
against which applications are assessed are functional standards,
not detailed specified standards, it is expected that in most
cases it should be possible to determine that the proposed
approach is acceptable without the need for a relaxation.
Relaxations, if required for a particular building, should
be sought from the Scottish Ministers, through the Scottish
Building Standards Agency.
The Act also introduces two new entities – the verifier and
the certifier. Verifiers will issue building warrants and
confirm that proposed works will meet the functional standards,
and certifiers of design or certifiers of construction will
certify that particular aspects of design or construction
comply with the warrant issued by the verifier and with the
Local authority powers in relation to the identification of
dangerous or defective buildings are strengthened and to assist
in the identification of potential dangers to the public,
local authorities now have the power to enter a building for
inspection, without any requirement for written authorisation,
where it appears that the building may be dangerous or defective.
Authorities can still serve notices on the owners of buildings
they consider to be dangerous or defective and may require
the owner to carry out operations to remove any defects or
The Scottish Building Standards Agency performs the functions
of Scottish Ministers in relation to the administration and
monitoring of the system and production of regulations and
guidance as well as maintaining registers and providing assistance.
Source : Shepherd & Wedderburn, solicitors
For more information
contact them at : firstname.lastname@example.org or via their web
site : www.shepwedd.co.uk