BUILDING STANDARDS DIVISION IMPROVING COMPLIANCE WITH BUILDING REGULATIONS CONSULTATION REPORT

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1 BUILDING STANDARDS DIVISION IMPROVING COMPLIANCE WITH BUILDING REGULATIONS CONSULTATION REPORT

2 EXECUTIVE SUMMARY 1. INTRODUCTION 2. THE CONSULTATION PROCESS 3. CONSULTATION RESPONSES 4. ANALYSIS 5. RESPONSES AND OTHER CONSIDERATIONS 6. ADDITIONAL COMMENTS RECEIVED 7. LOOKING FORWARD Acknowledgements The Building Standards Division is grateful to all of the respondents who contributed their views and opinions to this consultation. 2

3 EXECUTIVE SUMMARY 1. A consultation exercise commenced on 30 June 2009 to seek views on compliance with national building standards. The closing date of the consultation was 2 October The consultation paper sought views on 12 questions about compliance in relation to the national building standards system. These questions were set against the background of the Sullivan Report recommendations for improving compliance and the Government s manifesto commitment to improve enforcement of national building regulations. Various compliance based questions were asked ranging from the understanding of the roles and responsibilities of those involved in the system, to dealing with completion certificates through the process of reasonable inquiry. 3. There were 55 responses made to the specific consultation questions with 10 (18%) submitting additional comments on compliance related issues. Examples of response opinions included: The majority of respondents (96%) considered that, although there is not a strong evidence base, there is a current perceived compliance gap for certain building standards; between design approvals and the actual completed construction of buildings and that there is a need for greater certainty on compliance during the construction stages. On the question of reasonable inquiry guidance, 88% of respondents considered that there is a need for such guidance. The question on extending certification to cover all work where building standards apply has left respondents evenly divided. 4. An analysis of the content of all the consultation responses was carried out by the Building Standards Advisory Committee (BSAC) Compliance Working Party. This BSAC Working party also considered, in detail, all the helpful comments and suggestions from respondents. 5. Views on compliance were submitted by a wide range of stakeholders and this has allowed a good overview on compliance perceptions to be gathered from system users. It is clear from the consultation submissions that compliance enhancement may not be a simple fix but rather it will involve improvement work across all sectors and groups involved. The importance of understanding roles and responsibilities emerged as key to the delivery of compliance achievements as did the need for education to be targeted to system users and building owners. 6. Twenty five key actions have been identified as a range of measures to be taken forward by the Building Standards Division (BSD) of Scottish Government. These actions will involve working with the various stakeholders groups to develop better communication, education and good guidance to enhance building standards compliance for buildings in Scotland. 3

4 1. INTRODUCTION The purpose of this consultation exercise was to seek the views and opinions of key stakeholders and users of the building standards system in Scotland on aspects of the system that relate to improving compliance with the national building regulations. In 2007 Scottish Ministers convened an international panel to advise on a low carbon building standards strategy for Scotland. The panel published its recommendations in December 2007 in A Low Carbon Building Standards Strategy for Scotland commonly known as the Sullivan Report which set out recommendations for the route to low carbon buildings via improved energy standards in Scotland. The Report stressed the importance of compliance with building regulations and the need for robust mechanisms to ensure that improved building standards are actually met in completed buildings. The Government s manifesto also included a commitment to improve enforcement of building regulations, i.e. Direction would be given to the then Scottish Building Standards Agency to provide stronger leadership and consult on proposals to ensure that completion certificates comply with regulations. Against this background, a Building Standards Advisory Committee (BSAC) Compliance Working Party was set up to consider building standards compliance issues relating to the Sullivan Report recommendations and the Government s manifesto commitments. The questions posed and views sought in this consultation paper were derived from this Working Party s deliberations on compliance issues. 2. THE CONSULTATION PROCESS The consultation paper was issued to over 700 identified key stakeholder consultees from the public and private sectors, Non-Departmental Public Bodies (NDPBs), individuals and interested parties and recognised equality groups (organisations from each of the identified equality areas). The consultation documents were published on the BSD website as an electronic download, with paper copies issued to all individuals who requested a hard copy. In addition to seeking written responses from a diverse range of stakeholders during the consultation period, BSD delivered 3 Stakeholder Information events that were attended by 124 key stakeholder representatives. The main purpose of these events was to provide an overview and explanation of the questions posed in the consultation papers and to encourage further engagement through response. All were invited to submit their views and comments on the questions posed in the consultation paper by 2 October In total there were 55 responses from the following groupings: Local Authority Verifiers 19 35% Professional Organisation/Trade Association 16 29% Individual 7 13% Contractor/Developer 6 11% Designer/Consultant 3 5% Manufacturer 2 4% Advisory Body/Committee 1 2% The consultation paper sought views on 12 questions about compliance in relation to the national building standards system. Given the wide range of stakeholders potentially affected by the proposals it was anticipated that a greater number of responses would 4

5 be made to the consultation paper. However, most key stakeholders, or representatives of their areas of interest, have offered response. This is considered sufficient to inform the assessment and further consideration on the introduction of any changes to improve compliance with national building standards. 3. CONSULTATION RESPONSES Views and opinions were sought on specific question areas relating to the improvement of compliance with national building standards. Not all consultees responded to all questions therefore a summary table of responses to each question is set out below, followed by brief comment. Q Summary of Question No. of Response responses 1 Do you consider that the duties and responsibilities of those involved in the building standards system are clearly defined? (58%) No 21 (42%) Yes 2 Do you consider that there is a current compliance gap, for certain building standards, between design approvals and the actual completed construction of buildings? 3 Do you consider that there is a need for greater certainty on compliance with certain standards during the construction stages? 50 2 (4%) No 48 (96%) Yes 51 2 (4%) No 49 (96%) Yes If yes, which standards and why? What methods could be employed to confirm compliance? 4 Do you consider that within the building standards system the balance between plan checking and inspection is correctly weighted? A range of standards suggested mainly: energy, noise, fire and structural stability. Suggestions include: certifiers of construction schemes, more inspections, air tightness and noise testing (82%) No 9 (18%) Yes 5

6 Q Summary of Question No of Responses 5 (a) Do you consider that there is a 48 need for enhanced guidance on what constitutes reasonable inquiry? Response 6 (12%) No 42 (88%) Yes (b) Do you consider that there should be guidance to verifiers on risk assessment for setting inspection levels? 46 6 (13%) No 40 (87%) Yes 6 Do you consider that certification should be adapted to cover all work that needs to comply with building regulations irrespective of the need for a building warrant? 7 Should all work (including Schedule 3 work types) that requires to comply with building standards be included on the local authority Building Standards Register? 8 Do you consider that the 3 year life of a building warrant is still appropriate? 9 Do you consider that the 42 day period to submit the specified plans and complete the application for the proposals contained in a building warrant is still appropriate? (50%) No 25 (50%) Yes (56%) No 21 (44%) Yes (33%) No 33 (67%) Yes (29%) No 35 (71%) Yes 4. ANALYSIS In addition to agreeing or disagreeing with the specific questions a number of respondents offered comments or suggestions on various issues in relation to compliance. To ensure that all comments were considered the analysis of the questionnaire responses and all additional comments received was carried out by the BSAC Compliance Working Party. This working party was made up of experienced construction professionals including engineers, local authority verifiers, builders, lawyers, architects and designers from various sectors of the industry who were familiar with the issues under discussion, having been involved since the initiation of the compliance review. 6

7 5. RESPONSES AND OTHER CONSIDERATIONS Q1. Roles and Responsibilities - Do you consider that the duties and responsibilities of those involved in the building standards system are clearly defined? The majority (58%) of respondents to this question did not consider that the duties and responsibilities of all those involved in the process are clearly defined. A number of the respondents (42%) considered that roles were clearly defined in legislation and existing procedural guidance. However, over half of that number considered that there was still confusion and a lack of understanding of the role and responsibilities of the relevant person. This was particularly emphasised by respondents who felt that generally, responsibilities were understood by those professionals that are regularly involved in the building standards system but that this was not the case for those less familiar with it. Many (50%) of respondents, from across all of the groups, were of the opinion that the responsibilities of the relevant person in relation to signing off building standards work at completion, is not understood and can cause confusion. These respondents also expressed concern that the relevant person, generally the owner of the building, has no proper perception of their compliance responsibility as they often have little or no construction knowledge or familiarity with building regulation requirements or indeed the Building Standards system. A few respondents felt that there is a wrong and widely held public view that building standards verifiers are responsible for checking and approving all construction work onsite. Some Local Authorities stated that, despite guidance issued by some authorities, the public perception is still one of building standards verifiers carrying out site inspections with a role similar to that of a clerk of works. Respondents consider that this perception needs to be addressed and greater clarification given with regard to site inspections and completion certificates. Some respondents who answered no felt that the role of the Certifier of Design and Certifier of Construction is not always easily understood particularly in their role of confirming compliance pre-approval or post completion. Concern was also expressed about the level of understanding by Certifiers of Design as to the extent of information the designer is required to provide to building standards verifiers in support of their submissions. Respondents have suggested that it would be useful to publish some shorter guidance (user guides) written in plain English on duties and responsibilities that can be readily used by those undertaking small works. Focused easy guides, particularly in relation to the relevant person have been suggested. It was also suggested that BSD should produce leaflets specific to relevant parts of the Procedural handbook. One or two respondents also expressed concern over the lack of understanding of the responsibilities of some key players such as verifiers. In relation to the role of the BSD (and of the Scottish Ministers) one respondent expressed the opinion that the Views system deserves greater awareness for both public authorities and businesses alike. 7

8 Other Considerations The relevant person in relation to a building is defined in sections 17(10) and 27(3) of the Building (Scotland) Act On completion of works that were subject to a building warrant approval, the relevant person must submit a completion certificate to the verifier certifying that the work was both, carried out in accordance with the warrant and complies with the building regulations. This duty for the relevant person was a key question posed in the consultation paper Improving Building Standards: Proposals in July From the responses to that consultation there was overwhelming support for the proposal that the owner should continue to be the duty holder for complying with the legislation and associated building standards. There was also a clear belief that this remained the clearest way to encourage and ensure appropriate standards in buildings and that the relationship between the owner and the builder should be determined by contract. More recently the Sullivan Report confirmed agreement that the owner should be responsible for ensuring building work is compliant. This matter was also considered in March 2008 by the BSAC Compliance Working Party. The Working Party agreed that the sign-off of work (confirming compliance with building regulation standards) by a single professional with professional liability is considered untenable and therefore the responsibility for compliance should remain as it is at present, i.e. with the owner, the relevant person ). Key Issues A lack of understanding of roles and responsibilities exists for users of the building standards system in Scotland. The roles and responsibilities are clear in legislation therefore no amendments to the current primary or secondary building standards legislation are required at this time. There is a need for national guidance on the duties and responsibilities of each of the key roles involved in operating the building standards system in Scotland. Conclusions Clearly set out in legislation, the roles and responsibilities of those involved in the building standards system may be better known and understood by those routinely involved in the system processes and procedures such as designers, certifiers or verifiers. This may not be the case for those with less frequent direct procedural or construction involvement such as relevant persons (generally building owners) or clients. Given the statutory duties placed on certain parties to the process, such as the relevant person signing off compliance, education and awareness of specific roles and responsibilities, have emerged as essential. It is also concluded that extending system education and awareness measures to all parties involved in building standards should lead to enhanced compliance. 8

9 Next Steps The Scottish Government through the Building Standards Division (BSD) will action the following measures for the purpose of enhancing building standards compliance in Scotland: Action 1A Work with building standards verifiers to produce a national customer charter that sets out what can be expected in terms of service provision and clarifies the responsibilities of those involved. Action 1B Work with key stakeholders and users to produce a range of guides for clarifying the roles and responsibilities of those involved in the building standards system. These could be freely available from DIY stores, Local Authority receptions etc. Q2. Compliance - Do you consider that there is a current compliance gap, for certain building standards, between design approvals and the actual completed construction of buildings? Responses A large majority (96%) of those that responded to this question considered that there was a compliance gap between the approved design and the completed construction. From 31 (56%) of the respondents that intimated that there was a compliance gap, they either considered the gap existed, or there was a risk of its existence, across all building standards. A compliance gap for building standards relating to Energy (including airtightness and glazing), Noise, Fire and Electrical was considered to exist by 15 (27%) of respondents. Some respondents related a compliance gap specifically to building standards that they were familiar with, such as electrical organisations perceived there was a gap in compliance with electrical standards and energy representatives are concerned with compliance with energy standards. Respondents put forward the following as contributing factors, or risks, to the existence of design/construction compliance gaps: Reducing level of verifier inspections. Anecdotal evidence of various areas of construction that have resulted in noncompliance as a result of ignorance and lack of knowledge. The number of rejections and amendments to building warrant applications at completion stage proves that buildings are not being constructed in accordance with the approved plans. The number of faults being found at periodic inspections would indicate that latent defects may exist in the building. There are not enough areas covered by the current approved construction or design schemes. Warranty claims data indicates building failures can occur for a variety of reasons but as a whole they are as a direct result of the construction not following prescribed standards. Respondents recognised that the current building standards system has effective procedures that, if implemented, are successful in dealing with everyday compliance 9

10 issues. However, there is also thought that these established procedures may require adjustment to align with steps to close any compliance gap. A common theme running through a number of the responses was that there was insufficient supervision of works or inspection of works being carried out during the construction stages. Respondents put forward that perhaps the compliance approach needs to be different when addressing the achievement of noise or energy standards. This was on the basis that the performance of materials, components and technologies can be very dependant on the quality of the installation. Of the minority (4%) that did not consider that there was a compliance gap, their main reasoning was that provided the approved building warrant drawings are followed during construction and the verifier undertakes periodic site inspections, compliance should not be an issue. Other Considerations In April 2008 the Building Standards Division (BSD), working to a Sullivan Report recommendation, initiated a research pilot project on compliance. The key purpose of the research was to investigate a methodology that could be used within the industry for comparing as-built housing with approved warrant design. The project was in two parts with experienced building standards consultants and building science experts looking at any compliance gap from the perspective of both visual inspection of final construction and testing performance of certain elements. Findings from this limited research exercise have indicated that, in the main, the approved plan designs were translated to buildings on site. Testing performance of air tightness highlighted a key issue in relation to background ventilation where testing confirmed a better than designed achievement. The research reports and reviews submitted from the building science experts indicated that thermal imaging could be a useful compliance diagnostics tool for building construction. (see Other Considerations under Q3). Key Issues Further research and analysis work is required to investigate the extent and associated reasons for building work not complying with the approved designs both generally and for specific building standards. Consideration should be given as to whether the introduction of a two phased approach to completion and agreed construction stage inspections would address the issues surrounding the current compliance gap. It is considered that the existence of any building standards compliance gap can be dealt with appropriately by the existing primary and secondary legislation. In addressing the issue of compliance it may be necessary to develop guidance on good practice techniques and procedures that can come together to reduce any compliance gap. There is a need to align issues or actions with the outcomes from any development or delivery of reasonable inquiry or risk assessment guidance. A compliance baseline should be established to monitor improvements in compliance. 10

11 Conclusions Although there is belief in the existence of a compliance gap, it appears to be based on the possible causes of non-compliance rather than the provision of factual evidence or recording of the specific areas of non-compliance. In addition to BSD limited research and anecdotal compliance gap information, it is concluded that further work is required to gather and substantiate any compliance gap evidence. Taking forward the useful measures suggested or identified in the responses could allow a compliance datum to be established for the future measurement and monitoring of any compliance gap related to specific building standards. Measures, suggested to assist in both the establishment of a factual evidence base and the enhancement of building standards compliance levels could include: Identification and analysis of verifier records as to the compliance reasons why completion certificates are rejected; Outcomes of periodic verifier inspections; and Analysis of building warranty claims related to building standards. Next Steps The Scottish Government through the Building Standards Division (BSD) will: Action 2 Through all the actions contained in this report, seek to close the compliance gap. Q3. Compliance During Construction - Do you consider that there is a need for greater certainty on compliance with certain building standards during the construction stages? Responses The majority of respondents (96%) indicated that there is a need to establish greater certainty on compliance with building standards during the construction stages. One industry body answered No to this question on the basis that they did not think there was a need for additional requirements in their sector. Another answered No on the basis that they considered compliance during construction should not just apply to certain building standards but to all applicable standards. To give emphasis to this point one respondent replied with the question Are some standards more important than others?. Some respondents were of the opinion that, for certain standards where work is covered, it is often not possible to establish compliance other than during construction. It was also put forward that confirmation of compliance should be made, during construction, for all work that has an implication for achieving any building standards and where: Compliance cannot be determined at completion without difficulty; The work is not supported by compliance testing; and No specialist certification during construction is carried out. 11

12 Q3 (a) Which standards do you consider require assessment during the construction process for compliance and why? Responses Of the respondents that answered yes to Question 3, some 27% believed that there was a greater need for compliance certainty in relation to all building standards. Many respondents outlined their thoughts as to why it was important to establish compliance during construction, particularly in relation to works that would be covered up and these included: Use of modern complex materials and solutions used to meet standards Alternative performance designs used in lieu of guidance solutions Elements of design that occur during the construction works Environmental impacts of non compliance Possible health risks due to non compliance Cost and inconvenience of non compliance The majority of responses did identify specific standards, or structural aspects, where they considered that establishing compliance was important or essential. Respondents generally concentrated their focus on specific standards that they perceived as priorities or as one stated failure in any or each of these areas could have a massive impact on the well-being of the occupants and the future integrity of the building. The majority of responses did identify certain specific standards, or structural aspects, where they considered that establishing compliance was important or essential and these included: Energy: 57% of respondents, from across the range of stakeholders, considered that due to its importance various aspects of energy standards should be assessed for compliance during the construction stages. Aspects such as correct insulation levels and air-tightness levels were identified in several responses. Fire: 41% of respondents, from across the range of stakeholders considered that related standards should be assessed for compliance during construction. Main reasons given were based on the importance of ensuring compliance for issues like fire stopping, fire dampers and to ensure safety particularly where fire safety engineering has been used to demonstrate design compliance. Structure: 39% of respondents, from across the range of stakeholders, considered that structural work, such as foundations, should be assessed for compliance before being covered. Mandatory compliance assessment, during construction, was also suggested for structural elements. Another response suggestion was where SER design certification is provided for complex buildings the Structural engineer should inspect crucial stages of the work. Noise: 39% of respondents, from across the range of stakeholders, considered that sound insulation performance should be assessed during the construction phase. Main reasons given were on the basis of cost and the implications for projects if corrective work is required for compliance. 12

13 Q3 (b) What methods would you suggest could be employed during construction to confirm compliance with these standards? Responses The emerging theme across all stakeholders that responded to these three questions appears to be that confirming compliance could be best achieved by focussed inspections and testing during the construction stages of the work. Respondents suggested a fair number of methods for dealing with the wider issue of confirming compliance with standards, such as: Regime of inspections to be undertaken by the contractor/relevant person. Specified staged inspections by the verifier. Random sample of buildings by building standards verifiers. Link design certification to construction certification through a single approved body. Extending the use of Approved Certifiers of Construction. Self certification by designers that design is in compliance with regulations. Completion certificates issued by private consultants, charged with designing and monitoring the build. Ensuring a proper inspection regime is in place by selecting a competent person or organisation to supervise construction. In addition, respondents offered measures and methods that they considered would assist in the assessment of compliance with specific aspects of construction such as: Routine and sample testing of sound insulation for housing developments. Air tightness testing for energy conservation. Infrared Thermography for energy compliance. All electrical installation work including testing and inspection should only be undertaken by competent persons. Inspection and testing during construction for plumbing and drainage. Other Considerations Approved Certifiers of Construction and verifier inspections are discussed under the considerations for the compliance gap (Question 2) and the outlined initiatives for the wider compliance will also address compliance in relation to specific standards. In 2008 the Scottish Government appointed the Building Research Establishment (BRE) to undertake a monitoring programme of the use of infrared thermal imaging by building standards verifiers. This pilot exercise was a project to examine how thermal imaging could fit into the verifier's process of 'reasonable inquiry' before acceptance or rejection of a completion certificate. This work involved training and mentoring of verifier staff, monitoring of the use of the infrared cameras and reporting progress. Key outcomes from this exercise were that the determination of compliance with aspects of energy building standards may be supported by the use of modern diagnostic equipment such as infrared thermography and this is acknowledged by verifiers and other construction professionals investigating or tentatively using such technology. 13

14 Although the use of infrared surveys are increasing, a thermal survey alone is not normally sufficient to establish the cause of a thermal anomaly and therefore other investigative methods may be needed. Infrared thermography surveys may offer the potential for non-intrusive compliance investigation techniques when supported by expert construction analysis of reports and images. The 2008 compliance research pilot project (see Q2- Other Considerations) involved the analysis of thermal images and their capture methodology by Alba Building Sciences and reviewed by Glasgow Caledonian University. A key finding was the differences in views of these experts indicating that more work is needed by the Thermal Imaging Industry before thermography can be mainstreamed into construction or included within the supporting guidance for compliance with the energy building standards. Key Issues Greater need for those responsible for buildings to confirm building standards compliance during the construction process. Building work not confirmed compliant by testing or certification should be inspected for compliance during construction. Need for focussed inspections and testing regimes during construction. Consider, under reasonable inquiry, increasing the building standards inspection role for verifiers to align with customer/industry expectations. Encourage the development of further certifier of construction schemes particularly into compliance higher risk elements of construction such as noise, structure or energy. Conclusions The importance of the need to establish compliance by the route of inspection during construction has clearly emerged from the consultation. Competent reasons identified for the opportunity of non-compliance to occur indicate synergies with other compliance aspects such as education and awareness duties of those involved or responsible during the construction process. Performance testing, such as for sound transmission standards, or for air-tightness in relation to energy standards, can greatly assist the assessment of compliance at completion. This may also be true of modern innovative technology such as infrared thermography however, it is also clear that for certain aspects of construction, where testing is not practical or possible, assessment by inspection during construction is necessary. Owner or relevant person responsibilities for inspection or confirmation of compliance during construction are duties that are supported by the role of verifier reasonable inquiry. It is concluded that clarity of roles and responsibilities (see Q1) supported by the development and implementation of reasonable inquiry guidance (see Q5a) could guide the way to improvements in compliance with building standards. 14

15 Next Steps It is recognised that compliance with building standards during construction will be directly affected by the recommended actions or measures proposed for other aspects of the system such as reasonable inquiry guidance. In addition The Scottish Government through the Building Standards Division (BSD) will action the following: Action 3A Introduce, from May 2011 on a phased basis, random sampling of noise and air tightness testing. Action 3B Work with building standards verifiers and stakeholders in the construction industry to develop uniform testing procedures. Action 3C Monitor progress made by industry on testing technologies such as thermography with a view to future mainstreaming for assessing compliance with building standards during construction. Action 3D Provide updated Accredited Construction Details for the construction industry. Action 3E Provide a range of new and updated building standards supplementary guidance documents for the construction industry. Action 3F From October 2010, introduce guidance in the Technical Handbooks highlighting the benefits of using Approved Certifiers of Construction. Action 3G Continue to encourage the development of more schemes for certification of construction. Action 3H Work with Certification Scheme Providers to increase membership levels and encourage the use of certification by their members. Q4. Verification - Do you consider that within the building standards system the balance between plan checking and inspection is correctly weighted? Responses A majority of respondents (82%), from all sectors, were minded that the current balance was not correctly weighted. Many of these respondents felt that although the balance was currently moving more and more towards plan checking, there was variation across the country. Some individual verifiers indicated that although they considered their own operational balance was correct, there were concerns that the balance is not right across the whole of Scotland. Of the 17 verifiers that responded to this question, a majority (14) did not consider the balance correct with reasons given including: Many verifiers do not have sufficient staff resources to undertake robust inspection services. The increasing complexity of design has resulted in a need for more building warrant application assessment time to the detriment of site inspection. Improving application assessment times with no additional resources was to the detriment to the level of inspection undertaken. 15

16 Procedural guidance indicated that the focus of building standards inspection was to move away from inspection of domestic works. Those verifier respondents that considered that the current balance was correct supported their view with reasoning such as: The balanced scorecard has helped with a broader view of performance now being considered by some verifiers who ensure that the correct staffing establishment is in place to cover building warrant application assessments and inspections. The current level of plan check/inspection may be adequate to achieve balanced results in many project types during normal warrant application submission years. The correct use of verifier inspection regime mechanisms for individual projects based on risk assessment for the project will also achieve such a balance. A vital part of the Building Standards system is the submission and approval of plans which, if followed by those involved in the construction phase, should provide adequate information to enable on-site compliance. Non verifier stakeholder responses that considered that the balance was correct (8%) offered reasoning such as: In general, buildings are built to the required standards in Scotland. The split at present is necessary and adequate to prevent most builders from deviating from the plan and design. Other Considerations Robust examination of design proposals on plans is not a completely certain method of ensuring compliance with building requirements in completed buildings. It does however give the relevant person the opportunity to build in compliance with building standards. If the objective of the building standards is to be improved, then there must be arrangements for assessing that the building work has been carried out in accordance with the approved building warrant and the building as constructed meets the requirements of the building regulations. This is consistent with the compliance declaration to be made by the relevant person as part of their responsibility and duty under the process of submitting a completion certificate. The 2003 Act set the duty of verifiers to include reasonable inquiry being a process where, in addition to their pre-emptive plan checking duty, verifiers are required to be satisfied on the matters certified by the relevant person. Verifiers normally fulfil this duty by carrying out an element of inspections during construction or at completion supplemented by other appropriate evidence such as certification or testing. Any inspection regime implemented by the verifier has to be both appropriate to the works involved and the level of compliance satisfaction required. In practice verifiers operate a system that attempts to balance out design approval and construction compliance. Verifier decisions to inspect, or not, as part of reasonable inquiry may now be mainly risk based and when carried out be only to an absolute minimum level. Work is currently being undertaken by BSD to look at the role of verification for Scottish Government Ministers prior to the appointment process for verifiers. Optimal Economics was appointed by the BSD in September 2009 to undertake a research project to support the appointment of verifiers in

17 All 32 appointed local authority verifiers have been audited by BSD against their own balanced scorecards and the Optimal Economics Report evaluates the effectiveness of the audit process. Key areas of the Report that relate to verifier performance and customer expectations identify the issue of national inconsistency. Key Issues It is acknowledged that the balance of plan checking and inspection of building works by verifiers does not appear to be correctly weighted consistently across Scotland. For some verifiers plan checking takes priority in both performance measurement and operational resources. Procedural guidance to verifiers is not consistent with a plan checking inspection balance. The undertaking of robust inspection services may be outwith the resources of some appointed verifiers. National adoption of verifier inspection regime protocols for individual projects, based on risk assessment, should redress the plan check/inspection balance. Conclusions An all sector perception that building standards plan checking/inspection balance varies across Scotland from verifier to verifier is apparent from the consultation responses. The implications of such a variance are perhaps not so obvious or easily associated with the issue of compliance with building standards. Verifier opinion from responses is such that whilst some believe their operational arrangements for inspection of works through reasonable inquiry fall short of what is required, others do not. All appointed verifiers for the building standards system in Scotland have now been audited in their role and subsequently the audit process has been the subject of an analysis research project carried out by Optimal Economics. In agreement with the consultee responses to this question, the Optimal Economics Report identified that there was a variation in verifier service standards across the country that constituted a weakness of the building standards system. Optimal Economics identified that in considering the statutory function of public interest alongside the varying needs of service users, the existing verification system may require to be reformed. Whilst the report did not make specific recommendations, key reform considerations were for a system that was the same for every part of Scotland and for an alternative verifier appeal mechanism. Addressing the balance of levels of plan checking against levels of reasonable inquiry inspection by verifiers may relate and depend on the outcome of any reform to verification system in Scotland and will therefore feed into and form a key part of the verification reform process. 17

18 Next Steps The Scottish Government through the Building Standards Division (BSD) will action the following: Action 4A Undertake research to establish the levels of site inspection and compliance intervention measures currently being undertaken by building standards verifiers. Action 4B Seek to address the national inconsistency of verification site inspections. This will be developed through the appointment process for verifiers for May Q5 (a). Reasonable Inquiry - Do you consider that there is a need for enhanced guidance on what constitutes reasonable inquiry? Responses Representing a wide range of system users, 42 respondent bodies consider that there is a need for enhanced reasonable inquiry guidance. In addition to support for enhanced guidance, there were statements of support for defining the term reasonable inquiry by this group. From those respondents that favoured enhanced guidance, a number of benefits or improvements to the system were suggested, including: Reasonable inquiry guidance essential to allow the relevant person to fulfil their duty under the Act. Guidance required as a means of setting measurable performance standards for verifiers regarding the level of site inspection. Guidance is essential however, the verifier should still have the flexibility to use professional judgement to determine the level of reasonable inquiry where required. Reasonable inquiry should be defined and be meaningful and for it to be so it will require to comprise of a detailed inspection system for work under construction. The lack of clarity and guidance results in national inconsistency. The comments and suggestions from the 15 local authority verifiers who considered that guidance was needed, related to clarity, requirements and consistency of verification inspection levels nationally. Inspection regimes or key stage of construction inspections were also suggested by this group. There were 6 respondents, including 4 local authorities, who did not believe that there was any need for enhanced reasonable inquiry guidance. The comments and suggestions put forward from this group included: The term reasonable inquiry should be removed from the procedures. Verifiers could and should identify inspection protocols which set down the frequency and type of inspections required at the point of issue of the warrant. The risk assessment based approach to determine levels of inspections generally seems to be working satisfactorily in this authority. Before signing the Completion Certificate submission on behalf of their client any competent architect should already have made their own reasonable 18

19 inquiries and sought confirmation from the contractors that the building has been constructed in accordance with the warrant. It is suggested that the preparation and publication of guidance on reasonable inquiry to verifiers and applicants is not addressing the key issue of achieving on site compliance. The development of guidance on reasonable and inquiry would inevitably become extremely complex and legal in nature and would be difficult to detail within a practical guidance document. As alternative views on the need for enhanced reasonable inquiry guidance were expressed by their members, the Scottish Association of Building Standards Managers (SABSM) did not respond for or against such guidance. SABSM indicated that there is uneasiness in some quarters, about the formulation of further non-mandatory guidance which, in effect, cannot be enforced or implemented either through resource implications or through matters of policy. Other Considerations The 2003 Act generally retained the same framework as the 1959 Act though some of the procedures involved in the building standards process were changed to make them simpler and to reflect modern practice. A key change was the emphasis now placed on the relevant person (ultimately the owner) being responsible for certifying compliance at completion. The responsibilities of the relevant person may be considered separately from the public interest aspect of compliance and from this perspective reasonable inquiry was established. The introduction of statutory process of reasonable inquiry was not intended to be greatly different from the previous process set out in Section 9(2) of the Building (Scotland) Act 1959 where local authorities where required to ascertain after taking all reasonable steps in that behalf prior to accepting or refusing a submitted completion certificate. Although not defined in legislation, the main intention of the reasonable inquiry process was to promote a compliance verification system that was sufficiently flexible in allowing verifiers to carry out their statutory duty of being satisfied on the matters certified at completion by the relevant person. Those matters are: that the work was carried out or, as the case may be, the conversion was made in accordance with the building warrant; and in the case of work for the construction of a building, the building as constructed complies with building regulations. As in the 1959 Act, the 2003 Act allows verifiers discretion to inspect any aspects of the building work during construction. The reasonable inquiry process recognises that, although verifiers have this discretionary inspection power, they are not always in a position to inspect all aspects of construction during the build process. However, if the intention of the building standards system is to be achieved, it may require a balanced reasonable inquiry process that can make use of the mechanisms available, such as investigation through inspection, consultation, confirmation or other appropriate means. 19

20 In August 2008 the BSAC Compliance Working Party agreed the following findings in relation to reasonable inquiry: Members concluded that verifier guidance on reasonable inquiry will improve compliance. Members agreed that any reasonable inquiry guidance should not be mandatory or too prescriptive. Guidance should allow verifiers to exercise discretion taking on board local needs and circumstances. The principles of establishing reasonable inquiry should be utilised by verifiers for all aspects of construction and building types. Verifiers should, in all cases, determine individual reasonable inquiry by the method of risk assessment. Members agreed on the collection of data on current verifier testing / inspecting. Members agreed that reasonable inquiry guidance should be supported by current good practice information collected from verifiers. Any development of reasonable inquiry guidance would benefit from aligning with the findings and outcomes arising from the Optimal Economics Report on verification auditing. The audit process has shown that some verifiers already have in place protocols for inspection of building warrant related work and this could be built upon towards a national consistent approach to reasonable inquiry. Key Issues There is stakeholder desire for guidance on the function of reasonable inquiry for users and operators of the building standards in Scotland. Guidance could build on existing good practice to assist in the enhancement of both performance and consistency of operational approach by verifiers. Verifier concern that non-mandatory guidance cannot be enforced or implemented through resource implications or matters of policy. Inspection regimes or protocols based on mechanisms such as key stage or risk assessment should be addressed through any reasonable inquiry guidance. Any reasonable inquiry guidance should not be mandatory, too prescriptive or complex in nature. Conclusions Reasonable Inquiry is a statutory process, carried out by verifiers that can involve or affect all users of the building standards system. From the consultation responses, there is strong support for the development of reasonable inquiry guidance although some of the support reasons given may not be consistent with the aims or intentions of the process. An example could be the suggestion for reasonable inquiry guidance to be a benchmarking process for verification levels. Question 5(b) on risk assessment guidance also builds on the reasonable inquiry process and perhaps more accurately reflects what is needed within the system. 20

21 Historically, reasonable inquiry through inspection was a fairly straight forward process that could be carried out at any stage, although laterally, at completion. Modern day reasonable inquiry appears to be more complex, not unlike the modern construction methods and technologies that are more reliant on specific stage inspection or testing (products and on-site) to ascertain compliance with building standards. Consideration should therefore be given to the investigation of what reasonable inquiry means for not only verifiers, but also those responsible for the construction and compliance of completed buildings. Risk assessment guidance for verification inspections may form a relevant part of further reasonable inquiry work. The outcome of any verification reform as highlighted by Optimal Economics will also need to consider the function of reasonable inquiry for verifiers. Next Steps The Scottish Government through the Building Standards Division (BSD) will action the following: Action 5A Establish that building standards verifiers have adequate resources and sufficiently trained and qualified staff to undertake plan assessment and site inspections. This will be developed through the appointment process for verifiers for May Action 5B Work in partnership with building standards verifiers to develop good practice and implementable, enhanced guidance for reasonable inquiry. This guidance could take the form of project types and include relevant case studies. Q5 (b). Do you consider that there should there be guidance to verifiers on risk assessment for setting inspection levels? Responses Of those that responded to this question 87% were in favour of risk assessment guidance for verifiers on setting inspection levels. Although many have their own inspection risk assessment protocols, 14 of the 19 verifiers that responded to this question indicated that there should be national guidance. From the verifier perspective some of the given reasons and perceived benefits of guidance included: It would be helpful to provide guidance, in conjunction with guidance on reasonable inquiry, to allow the verifier to determine a suitable inspection regime for a particular project. Guidance will provide greater clarity and consistency amongst verifiers Guidance could help to ensure that a verifier is fulfilling a minimum level of inspections. There were 5 verifiers that did not support the principal of providing guidance to verifiers with quotes including: There should be a requirement for mandatory inspections. I answer no from the perspective of my own authority where a system of reasonable inquiry inspection is in place. It is not considered necessary to provide this type of guidance to verifiers 21

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