Building Regulation Prosecution and Enforcement Notices - too little, and possibly, too late

Introduction

The area of building regulation in the UK has come under sharp focus following the Grenfell Tower fire. Indeed, the report published on an interim basis entitled "Building a Safer Future" stated that the whole system of building regulations in the UK is "not fit for purpose". There seems little doubt that action will be taken to review the system of building regulations but this article focuses on prosecution and enforcement notices.

Prosecution and Enforcement

Under section 35 and section 35(a) of the Building Act 1984, if a person carrying out building work contravenes the building regulations the local authority may prosecute them in the Magistrates Court where an unlimited time may be imposed and such prosecution is possible up to two years after completion of such offending work. Alternatively, or indeed in addition, an enforcement notice can be served on the building owner requiring alteration or removal of work which contravenes the regulations under section 36. This has a life span of 12 months from the date of completion of the building work subject to some defences regarding the work if it has been in accordance with a full plans application approved or not rejected by the local authority.

Approvals

The scheme of building regulation approval can be administered by either an approved inspector or a local authority building control officer. The general view seems to be that the local authority building control officer has a reputation for being more independent and thorough but the approved inspector, suitably registered, tends to have a lighter touch and be more client friendly regarding achieving the client specific commercial needs. Needless to say, each category considers itself best placed to carry out the role of ensuring compliance with building regulations.

Liability

It is currently the case that the local authority inspectors have no civil liability if post approval the work proves to be defective or inadequate. All doors enabling claims to be pursued against those building inspectors for civil liability are shut following a series of cases that removed any potential liability in the law of tort for negligence, and even attempts to pursue such building inspectors by way of judicial review and under the principles of the European Human Rights legislation. The most recent attempt was in the case of Gresty v Knowsley Council.

The Grestys had substantial works carried out on their family home, obtained building regulation approvals from their local council, and serious structural defects leading to risk of collapse emerged. Aware of having no claim against the local authority for negligence, they sought a judicial review of the council's refusal to accept responsibility for rectifying the defects, alleging an infringement under Article 8 of the European Convention on Human Rights. The Court refused permission to seek judicial review.

Approved inspectors may have vulnerability to civil claims because they will have a contractual relationship with the building owner, but most of their terms of appointment will remove that potential liability so that responsibility for compliance with rests firmly with the owner.

Conclusion

Section 35 and section 36 provide machinery to punish those in breach of building regulations either by way of mandatory penalty or by way of putting right or removing the incorrect work but as the Grenfell interim report indicates, these mechanisms seem to be inadequate.

Also, bearing in mind that in this area there are time limits on the ability to use such legislative weaponry sitting alongside the challenges which currently appear to be indomitable to bring those administering the building regulation system to account from a civil liability perspective means that whilst it is important to be aware of the risks that do exist in relation to breach of building regulations the available remedies for such breaches seem to be very limited. Whilst clearly it is important to be aware of what is available, the real issue facing this particular area of the law and its administration is, one suspects, about to come in for some serious review and a widening of the scope of responsibility, many may say not before time.

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