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UNTO THE BREACH

LEGAL

To most architects the words 'Building Regulations' generally bring to mind the technical requirements that have to be met, writes Sue Lindsey. But what teeth do the regulations have when there is non-compliance? While most employers and contractors continue working with building control to nd a solution, sometimes an impasse is reached. The Building Act of 1984 and the regulations spell out the options for the local authority. There is a mix of statutory powers that can be exercised, and various civil and criminal proceedings can be brought.

Where works have been carried out before the local authority arrives on the scene, Regulation 15 can often be used to order the opening up of a building in order for the works to be inspected. Similarly, where retrospective approval is sought for unauthorised works, the local authority has extensive powers to order opening up.

Where works are either ongoing or have been completed, the local authority can, up to 12 months after the completion of works, serve a notice under Section 36 of the Act demanding that alterations be removed or put right. The current guidance from the ODPM is that this procedure is generally used against the building owner, and it seems that a notice can be served as soon as there is work in place that contravenes the regulations.

Unless they ask the court for longer, an owner has 28 days to comply with a Section 36 notice. If they do not comply in time, the local authority can, with immediate effect, undertake the work itself and recover the cost of doing so from the building owner. If the local authority does not want to embark on carrying out the work, section 36 preserves the right for it to seek the civil remedy of an injunction and force the owner to do the work.

Any owner failing to comply with an injunction would find themselves in contempt of court.

The other option open to the local authority is to bring a prosecution in the criminal courts under Section 35 of the Act. This can be for the breach of any provision in the Regulations, and there is a maximum fine of £5,000 for each offence. Notably, unlike the Section 36 procedure, the Section 35 offence does not address how the offending work is to be put right. Also unlike the Section 36 procedure, the court has held that a Section 35 offence is only committed when there is no intention to put the works right. These differences probably explain the ODPM's guidance that a Section 35 prosecution is the usual course of action to take against contractors. It is, after all, ultimately the building owner who has the responsibility and control to put their house in order.

Lastly, while Section 38 of the Building Act states that a civil claim lies for breach of Building Regulations, this has never been brought into force.

So while breach of the Regulations can be evidence of the violation of contractual or tortious duty, the only body that can bring direct action for that breach is the local authority.

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