Modern enforcement methods

It is true to say that any regulatory system is only as good as the way it is brought into force: it is pointless to have a neat and elegant set of regulations if they cannot be enforced. This applies just as much to Building Regulations as to any other regulatory system.

The whole culture of building control enforcement has changed radically in the last 20 years. Before then the responsibility of ensuring that building work complied with the Building Regulations rested solely with building control officers in local authorities, some of whom at least seemed to delight in finding 101 detailed reasons why a development could not proceed. With the advent of competition from the private sector, approved inspectors and the introduction of functional regulations, the situation is now completely different. Building control officers, whether in the public or private sectors, are now devoted to working with developers to ensure compliance, and as a result the number of cases that require legal enforcement are a minute proportion of the total number of applications.

Nevertheless, it is important to have back-up powers for those relatively few cases in which the developer is determined to flout the regulations. Approved inspectors do not have such powers, and so any legal action has to be initiated by local authorities.

The legal powers available to authorities are archaic, and stem from Victorian public health legislation. Under the powers currently found in the Building Act 1984, there are essentially only two things they can do: they can either seek to have the offender fined in the magistrates’ courts for breach of the Building Regulations (and fines can be levied on a daily basis as well as for the original offence), or they can seek to pull down or alter work which is in contravention of the regulations.

However, both of these courses of action have their difficulties, including the time and money needed to be spent by solicitors and building control professionals in local authorities to prepare cases for the courts, the often disappointing levels of fine imposed, and the constraints imposed by legislation such as the limited period in which action can be taken by virtue of the Magistrates Courts’ Act. Mindful of this, Local Authority Building Control, in conjunction with the Local Government Association, submitted proposals to the government in the autumn of last year as to how the enforcement system could be made more effective.

In the past, responsibility rested with building control officers, many of whom delighted in finding 101 reasons to stop a scheme

 

Some of these proposals require primary legislation before they can be introduced, and it is very welcome that one aspect has already been covered. In June, the Climate Change and Sustainable Energy Bill was passed, which extends the time period for local authorities to prosecute against breaches of energy efficiency standards (Part L) from six months of completion of the works to six months of discovery of breach (provided proceedings begin within two years). Encouragingly, the government has said it will extend this provision to cover other elements of the Building Regulations as soon as parliamentary time can be found.

More generally, the government is undertaking a review, led by Professor Richard Macrory, of whether the system of regulatory sanctions that currently exists is consistent with, and appropriate for, the risk-based approach to regulation that the government favours. The purpose of the review is not a blanket strengthening of all penalty regimes (including building control), but the introduction of options that could add to regulators’ enforcement toolbox, thereby broadening the flexibility available to both regulators and the judiciary to meet better regulatory objectives and improve compliance. LABC is responding to this review and I anticipate the final recommendations being published this coming autumn.

However, for the moment, we must make the best of the current system. Let me give the following tips to developers for achieving compliance:

• Talk to local authority building control officers at the earliest possible opportunity, so that you can work together in meeting the regulatory requirements.
• Keep up to date with changes to the regulations: many local authorities arrange seminars for architects and builders in their areas.
• Notify the building control officer at key stages in the construction process, so site inspections can take place at this time, thereby avoiding the need for future remedial action, which might well be expensive.