CONSULTATION ON REGULATIONS IN SUPPORT OF THE BUILDING (SCOTLAND) ACT
4 Role of the Scottish Ministers
4.1 Interpretation
4.1.1 While interpretation of regulations is the preserve of the Courts, the Scottish Ministers have the power to give a view on the extent to which a proposed building or construction complies with the regulations. Also, most of the technical information related to the standards in the regulations is in the Technical Handbooks and other guidance documents issued by the Ministers, and the SBSA can interpret these. Informal advice on the content of the Handbooks is available by telephone, but for a formal view on the extent to which a proposal complies with the building regulation standards the following procedure must be followed.
4.2 Reference to the Scottish Ministers for a view
4.2.1 To assist verifiers and applicants for warrant in cases where there is doubt on whether proposals satisfy the regulations, or whether continuing requirements need to be imposed, the Scottish Ministers may give a view on the matter. Verifiers must have regard to any view given when determining the application. Verifiers should note that a formal view will not be given on matters certified by an approved certifier of design.
4.2.2 Either the applicant or the verifier may choose to request a view. However a view is only given if, in the words of the Act, the Agency (on behalf of the Scottish Ministers) 'think it fit'. It will be regarded as unusual to give a view if only one party seeks to approach the Agency. The intention is not to act as an unofficial appeal mechanism, but to assist where there is genuine doubt as to the extent to which a proposal meets the regulations.
4.2.3 A referral for a view should be e-mailed, faxed or otherwise sent to the Agency. A response is given within 48 hours, stating whether the Agency is prepared to give a view, what the fee is, and when a response will be given. The timing depends on the nature of the query, and whether sufficient information accompanies the referral. Only the minimum information and drawings need accompany a referral, but further details may be requested if thought necessary. The applicant must then confirm that they accept the fee and timescale.
4.2.4 The Agency does not normally consult on their view, as it is intended as a fast response service. Where the opinions of other parties, such as the fire service, may be useful, consultation should take place before the Agency view is sought. If the Agency consider appropriate consultation has not taken place, the view can include a recommendation to the verifier or the applicant to consult specifically on the matter.
4.2.5 A view is sent to both verifier and applicant, and will be accompanied by an invoice. Where the Agency consider it may be useful, views are published more widely.
4.2.6 Where approved certifiers of design are seeking advice on the extent to which proposals satisfy the regulations, in terms of either the matters certified or their relationship to other aspects of design, the Agency may give advice, but may charge a fee depending on the extent of the work involved in considering the case. A verifier is not required to have regard to this advice when considering the relationship of certified matters and other aspects of design.
Note:
(1) In practice, the Scottish Building Standards Agency will receive the reference and issue the view on behalf of the Scottish Ministers.
4.3 Relaxations
4.3.1 For any particular building, a person may apply to the Scottish Ministers for a direction to either relax or dispense with a provision of the building regulations. The building regulations [may] however designate certain provisions that may not be relaxed, [although there is currently no such designation - yet to be decided].
4.3.2 Where the Scottish Ministers consider it unreasonable that the provision should apply to that building, they issue a direction. The direction may set conditions, and may set a date for expiry. Any direction may also be revoked or varied by a further direction. There is no requirement to consult before issuing a direction in relation to a particular building, but the fire service will normally be consulted for any question related to fire matters.
4.3.3 The application should be made on the model form available from the Agency. [This is also available on-line - yet to be prepared.] One copy of sufficient drawings, specification and other information to fully explain the case should accompany the application. The precise provision of the regulations which the applicant considers is not appropriate for the application must be identified. If the Agency request, further information, or test results (which the applicant must obtain at their own expense) should be submitted. With the agreement of the Agency supporting information may be submitted electronically. Where the Agency consider it necessary, a copy of any related application for warrant must be forwarded by the relevant verifier. No fee is payable when making an application for a relaxation.
4.3.4 A draft direction is sent to the interested parties, giving 21 days for representations against any aspect of the direction. A final direction is issued after consideration of the representations, if any, or after the 21 day limit. Copies of the final direction are sent to the local authority [and to every verifier authorised to deal with that type of building in that local authority area - this will only apply if alternative verifiers are introduced]. Any other party that received the draft direction should also receive a copy of the final direction. The Agency will normally report the background to the reasoning on the decision.
4.3.5 There are differences between relaxations under the 2003 Act and those previously given under the 1959 Act. The new form of expanded functional regulation gives more opportunity for flexibility, and most cases can be decided by verifiers by interpretation of the requirements in schedule 5 of the building regulations. A relaxation or dispensation is for cases where a requirement is clearly, in whole or in part, unreasonable for a particular building. Also there is now an appeal mechanism, as applicants may challenge a decision of the Agency, in relation to relaxations, in the sheriff court.
4.3.6 Where a certifier of design applies for a relaxation, any direction given must be submitted with the application for warrant or amendment to warrant. Where a certifier of construction applies for a relaxation, any direction given must be included with the submission for a Completion Certificate.
Notes:
- 'Relaxation' here indicates complete dispensation of a standard.
- The Agency carries out this procedure on behalf of Scottish Ministers
- Competence depends on whether the Agency considers the application relates to a regulation that may be relaxed (the Act provides that some regulations may not be).
- The direction may include conditions and/or continuing requirements.
4.4 Type relaxations
4.4.1 The Scottish Ministers may also give a direction relaxing or dispensing with a provision of the building regulations for any description of building, i.e. a type relaxation. This can be given either on application by any person, or by the Scottish Ministers on their own behalf. The building regulations [may] however designate certain provisions that may not be relaxed, [although there is currently no such designation - yet to be decided]. Before giving a direction, the Building Standards Advisory Committee must be consulted, along with any other interested party. The consultation will normally include the fire authorities, and must for any question related to fire matters. Verifiers and local authorities are also consulted.
4.4.2 The direction may set conditions, and may set a date for expiry. Any direction may also be revoked or varied by a further direction, following consultation as in paragraph 4.4.1 above. Where an application for warrant has been made to which a type relaxation is applicable, even if the relaxation is revoked or ceases to have effect before the building is completed the type relaxation continues to have effect for that application. A type relaxation cannot automatically apply where a warrant application has already been made, but a verifier may take account of such a direction when deciding the application.
4.4.3 An application should be made on the model form available from the Agency. (This is also available on-line.) One copy of sufficient drawings, specification and other information to fully explain the case should accompany the application. The provision of the regulations which the applicant considers is unreasonable for the type of building in question must be identified. If the Agency request, further information, or test results (which the applicant must obtain at their own expense) should be submitted. With the agreement of the Agency supporting information may be submitted electronically. No fee is payable when making an application for a type relaxation.
4.4.4 A draft direction is sent to the interested parties, giving 21 days for representations against any aspect of the direction. A final direction is issued after consideration of the representations, if any, or after the 21 day limit. Copies of the final direction are sent to every verifier [and to any local authority that is not a verifier, should that occur in the future]. Any other party that received the draft direction should also receive a copy of the final direction. The Agency will normally report the background to the reasoning on the decision.
Notes:
(1) 'Relaxation' here indicates complete dispensation of a standard.
(2) The Agency carries out this procedure on behalf of the Scottish Ministers.
(3) Competence depends on whether the Agency considers the application relates to a regulation that may be relaxed (the Act provides that some
regulations may not be).
(4) The direction may include conditions and/or continuing requirements.
4.5 Type Approvals
4.5.1 The 2003 Act does not make provision for type approvals. However a Scottish Type Approval Scheme is provided by the Scottish Association of Building Standards Managers (SABSM), (previously the Scottish Association of Chief Building Control Officers - SACBCO). Anyone wishing to have a design approved for use on several sites, subject to checks on site specific matters such as foundations, can apply to SABSM. [The contact point is STAS secretary, PO Box 13617, Newtown St Boswells, TD6 0YL. Telephone 01835 825 069, email: STAS@labc-services.co.uk - note this is subject to change before publication]
4.5.2 This scheme allows more rapid and certain processing of applications by members of the scheme. At present, all local authorities are members, so all local authorities approved as verifiers will recognise type approvals.
4.6 Direction allowing local authorities to verify warrants for their own work
4.6.1 Under schedule 2 paragraph 9 of the Building (Scotland) Act 2003 the Scottish Ministers have the power to permit local authorities to verify their own work, despite the interest the authorities have in that work. A direction permitting this is likely to be included in the letter of appointment as a verifier. The direction will require local authorities to issue and record in the Building Standards Register a warrant for any such work which would normally require a warrant.