The 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 resources.

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 system.

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 regulations.

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 dangers.

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 : opendoor@shepwedd.co.uk or via their web site : www.shepwedd.co.uk