Views sought on powers over unauthorised building works

Stronger powers for local authorities to take action against building works undertaken without a warrant are proposed in a new Scottish Government consultation. 

The exercise follows reviews of building standards that have taken place since the Grenfell Tower fire tragedy in 2017, which also identified the need for improving aspects of the enforcement of both procedural matters and non-compliant work.

The current enforcement powers are considered adequate for local authorities to take action on work where it does not meet building regulations or not in accordance with a building warrant. However it is thought advisable to strengthen existing enforcement powers of local authorities and increase penalties for offences to act as a deterrent to persons who commit offences under the Act.

The consultation covers proposals to:

• include owners (as well as occupiers) in the offences for occupation without completion (s 21 of the Act);
• include removal of work, introduce a standalone stop notice, and clarify the scope of s 27 to take action after acceptance of a completion certificate for higher risk buildings (“HRBs”), with a time limit for serving enforcement notices (s 27); and
• increase penalties for offences (s 48) that will also apply to offences by bodies corporate etc (s 49).

Introducing a new provision for the removal of work would give local authorities more flexibility on how the situation is remedied with building owners, some of whom would rather remove the work than make changes to existing work. The Act currently does not make provision for work to be removed, only that work meets building regulations.

While s 27 also gives local authorities powers to suspend (stop) work, views from local authorities are that a standalone "stop notice" would send a stronger and more effective message to actors that there are consequences to their actions, and would provide useful evidence should the local authority be required to take formal action including prosecution.

Currently there is doubt over the use of s 27 for local authorities to take action after acceptance of the completion certificate, and this would be made clear, with a proposed time for serving notices (requiring removal or alteration of non-compliant work) of up to 10 years.

The penalties under s 48 would be amended by:

• increasing the level of fine from level 5 on the standard scale to £50,000;
• introducing a two-year custodial sentence; and
• option for fine and/or custodial sentence.

Access the consultation here. The closing date for responses is 15 January 2024.