Supplementary memorandum from the Local
Government Association
Response to Specific Questions from
the Environmental Audit Committee following the Local Government
Association's Oral Evidence Session, 23 June 2004
How are Building Regulation requirements enforced
by Local Authorities?
1. Local authorities' Building Control Officers
examine plans and specifications for buildings to assess their
compliance with the Building Regulations. Plans are approved when
they show compliance. The construction work is monitored on site
by Building Control Officers to ensure it meets the requirements
of the regulations and is being carried out as per the approved
plans.
2. Any contraventions of the regulations
are notified to the builder and generally resolved on site. Where
remedial action is not taken on site, an informal notice may be
served to bring the works into conformity. If the informal notice
is ignored then formal action may be taken under Sections 35 and
36 of the Building Act 1984. This statutory enforcement is used
as a last resort and most of the enforcement is carried out by
other means. Building Control Officers will endeavour to support
the developer and builders in meeting the requirements and will
give them the opportunity to put things right if they contravene
any requirement.
3. Local authorities' approach to enforcement
action is intended to:
— Ensure that they enforce the law
in a fair, equitable and consistent manner;
— Assist businesses and others in meeting
their legal obligations without unnecessary expense;
— Focus on prevention rather than cure;
and
— Take firm action against those who
flout the law or act irresponsibly.
4. This means that they will be open, helpful
and fair to ensure that any enforcement action is proportionate
to the risks.
5. Best efforts are used to resolve any
issues where the law may have been broken without issuing formal
notices, or referring the matter to the courts. This is the first
option when the circumstances indicate that a minor offence may
have been committed and there is confidence that appropriate corrective
action will be taken. Where a formal notice is served, the method
of appealing against the notice and the timescale for doing so
will be provided in writing at the same time. The notice will
explain what is wrong, what is required to put things right and
what the likely consequences are if the notice is not complied
with.
6. Where the circumstances warrant it and
the alternative actions mentioned previously are considered inappropriate,
then prosecution may result.
7. Local authorities consider the following
factors when deciding whether or not to prosecute:
— The seriousness and effect of the
offence;
— How predictable the offence was,
or the circumstances leading to it;
— The offender's intent, history and
attitude;
— The deterrent effect of a prosecution,
both on the offender and others; and
— Whether there is enough evidence
to prove the offence.
8. To ensure that fair and consistent decisions
are made regarding prosecutions any decision to prosecute takes
account of the Code for Crown Prosecutors.
9. Some local authorities have mentioned
the Magistrates' Courts Act 1980 as causing them difficulties
in terms of enforcement through the courts. The Magistrates' Courts
Act requires a local authority to take legal action within six
months of becoming aware of the contravention. Authorities have
commented that they are finding it very difficult to maintain
their routine inspections and ensure they allow time to take matters
through the courts.
Any information, including figures, on prosecutions
regarding non-compliance with Building Regulations (part L in
particular)?
10. We have not had sufficient time to collate
figures, but prosecutions for non-compliance with Part L are believed
to be low. There are several reasons for the low level of prosecutions,
such as:
— Sufficient alternatives to enable
work to be altered to comply without prosecutions (many problems
will have been put right under the threat of prosecution);
— The time-consuming nature of prosecutions;
and
Is the LGA satisfied that the new Part L regulations
are being complied with?
11. The LGA is aware that prosecution is
difficult because of restrictions imposed on the power to prosecute
for non-compliance with Part L and other building regulations.
The powers available to enforce compliance with building regulations
are contained within Sections 35 and 36 of the Building Act 1984.
However Section 35 (which enables prosecution of offending builders)
is difficult to use effectively due to the restriction arising
from Section 127 of the Magistrates' Court Act 1980 which requires
a local authority to take legal action within six months of becoming
aware of the contravention. In practice six months is a very short
time—contraventions are not always immediately apparent,
builders not always easy to track down and there is a timescale
for good practice using the Enforcement Concordat. This restriction
does not impact in the same way on other local authority regulatory
services, such as Trading Standards, Environmental Health and
Development Control. The District Surveyors' Association is planning
to carry out a survey of the situation.
12. Although prosecution is difficult, many
jobs will be corrected under the threat of prosecution and our
members seem to be reasonably satisfied that the Part L regulations
are being complied with.
13. However, there seems to be a general
consensus that the regulations are becoming too detailed and complex
to be fully understood. Many local authorities are also concerned
that the regulations are becoming burdensome to enforce. Anecdotal
evidence suggests that Building Control Officers have to assist
the builder (and often the householder) more often in choosing
products and methods of construction that will meet the requirements
of the regulations. Larger schemes and developers with design
teams may have greater resources and skills available so may be
better placed to overcome the complexity of the requirements.
How satisfied is the LGA with the new self-certification
system (FENSA etc)?
14. The LGA has not taken a view on this
and our members seem to differ in opinion on how the new system
is operating—some believe it is working fairly well but
others believe it to be bureaucratic and ineffective, with non-compliance
widespread.
15. Many authorities have also mentioned
that the new system places considerable non-recoverable costs
on them in terms of processing and storing applications. They
have cited difficulties with enforcement, particularly surrounding
the inadequacy of their powers and resources. It is also felt
that public awareness of the scheme is still patchy and better
communication about the scheme is needed.
July 2004
| 
