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Building (Scotland) Act 2003

Type Act of the Scottish Parliament

Publication 2003-03-26

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Building regulations

Power to make building regulations

Building regulations

1

(1) The Scottish Ministers may, for any of the purposes of—

(a) securing the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings,

(b) furthering the conservation of fuel and power, and

make regulations (“building regulations”) with respect to the design, construction, demolition and conversion of buildings and the provision of services, fittings and equipment in or in connection with buildings.

(2) Before making regulations under subsection (1) (except regulations consolidating other regulations) or an order under subsection (4) the Scottish Ministers must consult—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) such ... persons as appear to them to be representative of the interests concerned.

(3) Schedule 1 makes further provision about the matters as to which building regulations may provide.

(4) The Scottish Ministers may by order modify paragraph 5(2) of that schedule.

(5) The Scottish Ministers may by order modify any enactment if it appears to them that the enactment is inconsistent with, or is unnecessary or requires alteration in consequence of, any provision of building regulations.

Continuing requirements

2

(1) Building regulations may impose on owners of buildings to which such regulations apply such continuing requirements as the Scottish Ministers consider appropriate for securing that the purposes of any designated provision of the regulations are not frustrated.

(2) In subsection (1), “designated provision” means a provision designated in the regulations as one to which the continuing requirements relate.

(3) A continuing requirement imposed by virtue of subsection (1) does not apply in relation to a building unless a provision of the regulations designated in relation to that requirement applies to the building.

(4) Continuing requirements may by virtue of subsection (1) be imposed on owners of buildings of such description as the regulations may specify (whenever erected, and whether or not any building regulations were applicable to them at the time of their erection).

Relaxation of building regulations

3

(1) This section applies where the Scottish Ministers consider that it is unreasonable that any provision of building regulations which would, apart from this section, apply in relation to any building or description of building should so apply, or should so apply without relaxation.

(2) Where this section applies the Scottish Ministers may—

(a) on an application made to them by any person, give a direction dispensing with or relaxing the provision in question in relation to the building,

(b) whether or not on an application made to them, give a direction dispensing with or relaxing the provision in question generally in relation to a description of building.

(3) No direction may be given under subsection (2) in relation to a provision of building regulations specified in the regulations as one in relation to which such a direction is not competent.

(4) A direction under subsection (2)—

(a) may be given unconditionally or subject to such conditions as the direction may specify,

(b) ceases to have effect on such date (if any) as the direction may specify,

(5) Before giving a direction under subsection (2)(b) or a direction under subsection (4)(c) varying or revoking such a direction the Scottish Ministers must consult—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) such ... persons as appear to them to be representative of the interests concerned.

(6) The Scottish Ministers must send a copy of any direction under subsection (2)(a) and any direction under subsection (4)(c) varying or revoking such a direction to—

(a) the local authority, and

(b) every verifier authorised to exercise functions under this Act in relation to the building in question or other buildings of that description in the area of the local authority.

(7) The Scottish Ministers must send a copy of any direction under subsection (2)(b) and any direction under subsection (4)(c) varying or revoking such a direction to—

(a) every verifier, and

(b) every local authority which is not a verifier.

(8) Where—

(a) an application for a building warrant is made to a verifier,

(b) all or part of the building to which the application relates is of a description to which a direction under subsection (2)(b) relates, and

(c) after the application is lodged, the direction ceases to have effect by virtue of subsection (4)(b) or is varied or revoked under subsection (4)(c),

the direction (with any conditions specified in it) continues to have effect in relation to the application.

(9) Unless the context otherwise requires, references in this Act or any other enactment to building regulations are, in relation to any building or description of building in relation to which a direction under this section is in force, to the regulations as, subject to that direction, they apply to that building or description of building.

Guidance documents

Guidance documents for purposes of building regulations

4

(1) The Scottish Ministers may issue guidance documents for the purpose of providing practical guidance with respect to the requirements of any provision of building regulations and may issue revisions of the whole or any part of any guidance document.

(2) A guidance document or revision issued under subsection (1) takes effect in accordance with a notice issued by the Scottish Ministers—

(a) identifying the guidance document or, as the case may be, the revision,

(b) stating the date on which the document or revision is to take effect, and

(3) The Scottish Ministers may withdraw guidance documents.

(4) A withdrawal of a guidance document under subsection (3) takes effect in accordance with a notice issued by the Scottish Ministers—

(a) identifying the document in question, and

(b) stating the date on which the document is to cease to have effect.

(5) In subsections (3) and (4) of this section and section 5—

“guidance document” means a document issued under subsection (1) of this section subject to any revision issued under that subsection,

“document” includes part of a document.

Compliance with guidance documents

5

(1) Failure to comply with a guidance document does not render a person liable to civil or criminal proceedings.

(2) But proof of compliance with such a document may be relied on in any proceedings (whether civil or criminal) as tending to negative liability for an alleged contravention of building regulations.

(3) In any proceedings (whether civil or criminal)—

(a) a document purporting to be a notice issued under section 4(2) or (4) is to be taken to be such a notice unless the contrary is proved,

(b) a document which appears to the court to be the guidance document to which such a notice refers is to be taken to be that guidance document unless the contrary is proved.

Building standards assessments

6

(1) A local authority must, if requested to do so by the owner of a building, carry out a building standards assessment.

(2) A building standards assessment is an assessment of the extent to which the authority considers that—

(a) the building complies with building regulations as the regulations apply to the building at the time of the assessment,

(b) any work which has been carried out in relation to the building was carried out without any authorisation required by or under any enactment,

(d) the building has defects which entitle the authority to serve on the owner a defective building notice.

(3) The Scottish Ministers may by regulations make further provision as to the matters to be assessed in a building standards assessment including, in particular, provision as to—

(a) the period to which an assessment in pursuance of subsection (2)(b) is to relate,

(b) circumstances in which an assessment is to be made in relation to part only of a building or, where a building forms part of a larger building, in relation to that larger building,

Part 2 — Approval of construction work etc.

Verifiers and certifiers

7

(1) For the purposes of this Act the Scottish Ministers may appoint persons (whether individuals or bodies corporate or unincorporate and including public bodies and office-holders) as—

(a) verifiers,

(b) approved certifiers of design,

(2) The Scottish Ministers may approve schemes in accordance with which persons (whether individuals or bodies corporate or unincorporate) who are for the time being members of the schemes are entitled to exercise for the purposes of this Act the functions of (either or both)—

(a) an approved certifier of design,

(b) an approved certifier of construction,

and references in this Act to approved certifiers of design or approved certifiers of construction include (unless the context requires otherwise) any persons who are by virtue of their membership of any such scheme entitled to exercise the functions of such certifiers.

(3) The Scottish Ministers may—

(a) approve any such scheme subject to such limitations as they may impose, which may be framed by reference to area, description of building, cost of building or building work or any other factor whatsoever,

(b) withdraw any approval given under subsection (2).

(4) The Scottish Ministers must keep lists of verifiers, approved certifiers of design and approved certifiers of construction.

(5) Such lists must, in relation to each verifier, approved certifier of design and approved certifier of construction, contain details of the matters in respect of which that verifier or certifier is authorised to exercise functions under this Act (including details of any limitations imposed on that verifier’s or certifier’s appointment under paragraph 2 of schedule 2 and, in the case of a certifier referred to in paragraph 4 of that schedule, any limitations referred to in that paragraph).

(6) The Scottish Ministers must make the lists available for public inspection at all reasonable times.

(7) The Scottish Ministers may exercise the functions of a verifier under this Act to the extent, and in the circumstances, specified in a direction given by them; and references in this Act (other than schedule 2) to a verifier are to be construed accordingly.

(8) The Scottish Ministers may, in any of the circumstances specified in subsection (9), direct a verifier to refer to them—

(a) any application specified in the direction, being an application made to the verifier under section 9 for a building warrant or an amendment to a building warrant and not determined by the verifier as at the date of the direction,

(b) any completion certificate specified in the direction, being a completion certificate submitted to the verifier under section 17 and not accepted or rejected by the verifier as at that date,

and the Scottish Ministers, instead of the verifier, may exercise the functions of a verifier under this Act in relation to any such application or certificate.

(9) The circumstances referred to in subsection (8) are where—

(a) the verifier requests the Scottish Ministers to issue the direction, or

(b) the Scottish Ministers consider that the verifier is incapable for any reason of exercising the functions of a verifier under this Act in relation to the application or, as the case may be, completion certificate specified in the direction.

(10) The Scottish Ministers may give verifiers directions of a general or specific character as to the exercise of their functions under this Act.

(11) Such directions may be given to all verifiers, to a particular verifier or to verifiers of a particular description.

(12) Schedule 2 makes further provision about verifiers, approved certifiers of design and approved certifiers of construction.

Building warrants

8

(1) A warrant granted under section 9 (a “building warrant”) is required for—

(a) any work for—

(i) the construction or demolition of, or

(ii) the provision of services, fittings or equipment in or in connection with,

a building of a description to which building regulations apply,

(b) any conversion of a building.

(2) Where such work is carried out, or such a conversion is made—

(a) without a building warrant, or

(b) in a case where a building warrant has been granted, otherwise than in accordance with the warrant,

the persons specified in subsection (3) are guilty of an offence.

(3) Those persons are—

(a) any person carrying out the work or, as the case may be, making the conversion,

(b) any person on whose behalf the work is being carried out or, as the case may be, the conversion is being made,

(4) In any proceedings against a person referred to in subsection (3)(a) for an offence under subsection (2)(a), it is a defence for the accused to show that before the work was carried out or the conversion was made a person referred to in subsection (3)(b) or (c) had given the accused reasonable cause to believe that a building warrant had been granted for the work or the conversion.

(5) In any proceedings against a person referred to in subsection (3)(b) or (c) for an offence under subsection (2)(b), it is a defence for the accused to show that at the time of the alleged commission of the offence the accused did not know, and had no reasonable cause to know, that the work was being carried out or the conversion made otherwise than in accordance with the warrant.

(6) In any proceedings against a person referred to in subsection (3)(c) for an offence under subsection (2)(a), it is a defence for the accused to show that at the time of the alleged commission of the offence the accused did not know, and had no reasonable cause to know, that the work was being carried out or the conversion made.

(7) The accused is to be taken to have shown the fact specified in subsection (4) or, as the case may be, (5) or (6) if—

(a) sufficient evidence is adduced to raise an issue with respect to it, and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(8) Subsection (1) does not apply in relation to—

(a) such work or conversions,

(b) such buildings or descriptions of building,

as building regulations may specify.

(9) A building warrant has effect for the benefit of the building to which it relates and of all persons for the time being having an interest in it.

Building warrants: grant and amendment

9

(1) A verifier must, on an application for a building warrant made to it, grant a building warrant if, but only if, it is satisfied as to the matters specified in subsection (2).

(2) Those matters are—

(a) so far as the application is for a warrant for the construction or demolition of a building—

(i) that the work involved will be carried out in accordance with building regulations, and

(ii) where the work is for the construction of a building, that nothing in any plan, specification or other information submitted with the application indicates that the building when constructed will fail to comply with building regulations,

(b) so far as the application is for a warrant for the provision of services, fittings or equipment in or in connection with a building—

(i) that the work involved will be carried out in accordance with building regulations, and

(ii) that nothing in any plan, specification or other information submitted with the application indicates that the services, fittings or equipment will fail to comply with building regulations,

(c) so far as the application is for a warrant for conversion of a building, that after the conversion the building as converted will comply with building regulations.

(3) Subsection (4) applies where, on an application for a building warrant for the construction or demolition of a building, the verifier is not satisfied that the information submitted with the application is sufficient, in relation to a stage in the construction or demolition specified in procedure regulations, to show that the building when constructed or the demolition will comply with building regulations.

(4) Where this subsection applies, the verifier may grant a building warrant for the construction or demolition of the building subject to the condition that work on the stage in question is not to be proceeded with until—

(a) such further information relating to that stage as the verifier may require is submitted to it,

(b) it is satisfied, on the basis of that information, as to the matter specified in subsection (3), and

(5) Subsection (6) applies where—

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