Legal/Regulatory Compliance Flashcards
What are the Building Regulations?
- Building Regulations are provided under the Building Act 1984 and apply in England and Wales.
- They exist to ensure the health and safety of people in and around buildings.
- They also provide for energy conservation, and access to and use of buildings.
When do Building Regulations apply?
Building Regulations apply to all ‘Building Work’ which is defined in Regulation 3 of the Building Regulations.
This includes the:
- Erection of a new building
- Extension of a building
- Material alteration of a building
- Installation, alteration of a controlled service or fitting
What are approved documents?
Practical guidance on ways to comply with the Building Regulations.
Can you name me some of the approved documents?
Part A: Structure
Part B: Fire Safety
Part C: Site preparation and resistance to contaminants and moisture
Part D: Toxic substances
Part E: Resistance to the passage of sound
Part F: Ventilation
Part G: Sanitation, hot water safety, and water efficiency.
Part H: Drainage and waste disposal
Part J: Heat producing appliances and fuel storage systems
Part K: Protection from falling, collision, and impact.
Part L: Conservation of fuel and power
Part M: Access to and use of buildings
Part N: Glazing (impact, opening and cleaning)
Part O: Overheating
Part P: Electrical safety
Part Q: Security
Part R: High-speed electronic communication networks.
Part S: Infrastructure for charging electrical vehicles.
Approved document 7: Materials & Workmanship
How would you get building regulations approval for a project?
Through a Registered Building Inspector.
This can be achieved through the local authority or registered Building Control Approvers.
What is the difference between Local Authorities and Approved Inspectors?
- Local authorities are responsible for ensuring work complies with the Building regulations.
- Approved Inspectors are approved by the Secretary of State to inspect, supervise and authorise building works.
Why did you select to use an approved inspector?
- Because they are generally seen to be more responsive and open to giving advice.
- Local authority cuts have resulted in understaffed Building Control departments generally.
Are there any timeframes involved with the appointment of an approved inspector?
- Approved inspectors need to serve an initial notice on the council.
- This must be validated 5 working days before the project commences.
Who is responsible for ensuring compliance with the Building Regulations?
There is a duty for all duty holders to ensure they have complied with Building Regulations.
- The person carrying out the building work /and commissioning that works have a responsibility for compliance.
- However, the owner of the building would be served with an enforcement notice if the work does not comply with the regulations.
What are the 2 types of Building Regulations Application?
Building Notice
- For the use of minor works.
- No formal approval is given but the process is quicker.
Full Plans
- This must be used for any type of building work including offices, factories, shops, etc.
What documentation do Building Control provide?
- Plan Certificate
- Final Certificate
Building Control review the initial plans to approve the proposed works comply with Building Regulations and provide a ‘Plan Certificate’.
Following completion of the works, a ‘Final Certificate’ will be issued if the actual works comply with Building Regulations.
What are enforcement options are available under building regulations?
LA will issue a formal notice to detail the breaches with timescales to rectify.
Enforcement Notice:
If timescales were not achieved the Local Authority may serve an enforcement notice on the owner requiring them to alter or remove work which contravenes the regulations (section 36 of the 1984 Act). Failure to comply can result in prosecution via the magistrates court or fined.
Direct Action:
If the owner still does not comply with the notice the local authority has the power to undertake the work itself and recover the costs of doing so from the owner.
Offending work can now be made up to 10 years after the event under the BSA.
Are you aware of any recent changes to Part B of the building regs?
– Enhancing the ban on combustible materials used in and on the exterior walls of buildings.
– This was extended from apartment buildings and hospitals to include hotels, hostels and boarding homes.
Are you aware of any recent changes to Part F of the building regs?
– Re-naming the ventilation methods.
– These were previously referred to as Systems and then alternative means if required.
– Extract ventilation must be used in areas of increased humidity or pollution, such as an extractor fan over an oven and purge ventilation.
– All replacement windows should be equipped with trickle vents.
Are you aware of any recent changes to Part L of the building regs?
– The amount of glazing to extensions (+Part O: Overheating).
– The requirement to install wastewater heat recovery to all showers.
– Heating systems flow temperatures to be no more than 55 degrees.
– Solar PV and/or Low Carbon Heating technologies to be installed.
What are the new duty holder roles for Building Regulations?
Client
Principal Designer
Designers
Principal Contractor
Contractors.
Give 4 examples of work where planning permission is required?
- New build construction.
- Extensions that are not a permitted development.
- Change of use that is not a permitted change of use.
- Increase in the height of a fence adjacent to a highway above 1m in height.
What would you include in a planning application?
- Name of client /agent
- Site address
- Details of the works
- Details of proposed materials
- Plans and elevation drawings
- Design and access statement.
What is the timeframe for planning consent?
8 weeks from the validation of the application.
Consent may take up to 12 weeks depending on complexity /LA workload.
What recourse if planning was rejected?
- Planning decisions can be appealed via an online form stating the reasons for the appeal with evidence.
- They can be appealed in the courts or to the Secretary of State within 6 months of decision.
What enforcement action can be taken with Planning?
- Planning contravention notice requires the owner to provide information.
- Entry to the land or property with 24 hours notice to investigate breaches.
- Enforcement Notice requesting the breach be remedied.
- Stop Notices can be issued.
Is there a limit as to when enforcement actions can be taken for planning permission?
- 10 years from completion of works.
- Except for change of use to a single dwelling house which is 4 Years from completion of the works.
Are you aware of any recent changes to planning legislation?
Government’s latest broadening of permitted development rights on 21 May 2024 focused on agricultural buildings.
Changing from agriculture to dwellings or commercial use
Yes, there have been some changes in the planning system following the Covid-19 pandemic to streamline the development process.
These include:
– Permitted development rights expansion: Allowing single-storey domestic extensions from 4m to 8m (for detached houses) and from 3m to 6m (for all other houses through a prior approval route.
– Change of Use amendment: Dissolved several use classes and introduced a new broad class E to make it easier for premises to change their use (shops, cafés, restaurants etc.) without having to apply for planning permission.
– Planning in Principle
Despite the changes, I would always consult with the respective local authority to confirm.
What is National Planning Policy Framework?
-This sets out the Government’s planning policies for England and how these are expected to be applied.
- The NPPF is designed make the planning system less complex and more accessible, to protect the environment and to promote sustainable growth.
What are the policies behind the NPPF?
- Sustainable development
- Community decision Making
- Town centre Renewal
- Housing
What is a listed building?
- A building of special architectural or historic interest.
- As a result, the building has been placed on the Statutory List of Buildings of Special Architectural or Historic Interest.
How is a building listed?
- Through an application form online to English Heritage.
- The applicant does not need to be the owner o the building.
- English Heritage assesses buildings put forward for listing or de-listing and provides advice to the Secretary of State on the architectural and historic interest.
- The Secretary of State, who may seek additional advice from others, then decides whether or not to list or de-list the building.
Under what legislation is a building listed?
The Planning (Listed Buildings and Conservation Areas) Act 1990.
What classes of listed building are there?
There are three types of listed status for buildings in England and Wales:
- Grade I: buildings of exceptional interest,
- Grade II*: particularly important buildings of more than special interest.
- Grade II: buildings that are of special interest, warranting every effort to preserve them.
Why are buildings listed what is the criteria?
The criteria for listing include architectural interest, historic interest and close historical associations with significant people or events.
The criteria include:
- Age and rarity: The older a building is, the more likely it is to be listed. All buildings erected before 1700 that will be listed.
- Aesthetic merits: The appearance of a building.
- National interest: Those that represent a nationally important but localised industry such as mills, castles etc.
What part of the building is listed?
The listing protection applies to the whole building (external and internal).
Buildings fixed to the listed building.
Building within the curtilage of the building even if they are not fixed.
Define the curtilage of a listed building?
Buildings constructed before 1 July 1948 that fall within the curtilage of a listed building are treated as part of the listed building and therefore approval must be sought before altering.
The effect of a proposed development on the setting of a listed building is a material consideration in determining a planning application.
Setting is defined as “the surroundings in which a heritage is experienced”.
How can a listed building be de-listed.
In the same way as it is listed an application is made to English Heritage and they advise the secretary of state who makes the decision.
When would you need to apply for listed building consent?
A listed building may not be:
- Demolished
- Extended
- Altered
Without special permission from the local planning authority.
What is the process of gaining listed building consent?
From validation of application most authorities aim to have decision within 8 weeks although they can take as long as 12.
What Enforcement Action Can be Taken if a listed building is falling into disrepair?
Section 215 Notices (Town & Country Planning Act 1990):
Local planning authority have the power to take steps requiring land to be cleaned up when its condition adversely affects the amenity of the area.
Urgent Works Notices:
Served where works are urgently necessary for the preservation of a listed building.
Mainly to do with maintaining structural integrity and weather tightness.
Allows for works to be undertaken by the LPA and the cost recovered from the owner.
Repairs Notices:
This Repairs Notice can lead to compulsory purchase of a property by the planning authority if repairs are not carried out.
Works undertaken under a repairs notice are long-term repairs to put and keep a building in good repair.
What Enforcement Action can be taken when a Listed Building Consent has been breached?
- Unauthorised works to a listed building is a criminal offence which could result in an unlimited fine or imprisonment (2 years).
- Enforcement notice may be served to reverse the works.
Is there a time bar on Listed Building Consent enforcement like with planning?
There is no time limit for listed building consent.
What is asbestos?
Asbestos is a fibrous form of several naturally occurring silicate minerals.
Why was asbestos used in buildings?
- Sound absorption
- Insulation
- Fire and heat resistance
- Affordability.
What are the three main types of asbestos?
- Chrysotile – White
- Crocidolite – Blue
- Amosite - Brown
Where is asbestos likely to be found?
- Corrugated concrete roof sheets.
- Insulation board.
- Pipe Lagging.
- Tiles.
Why is asbestos dangerous?
Breathing in asbestos fibres can lead to:
- Asbestosis (scarring of the lung)
- Lung cancer
- Mesothelioma (cancer of the lung lining)
When was asbestos used in construction?
- Used extensively between the 50’s and early 70’s.
- Blue and brown asbestos banned in 1985
- White asbestos was banned in 1999.
Which forms of asbestos have a higher potential for fibre release?
High
- Sprayed coatings
- Loose fill
- Lagging.
Medium
- Asbestos Insulation Board
Low
- Asbestos cement
- Decorative paints and plasters.
What regulations apply to Asbestos and what duties do these regulations impose and on whom?
Control of Asbestos Regulations 2012 (CAR) (under the Health and Safety at Work Act 1974)
Requires the duty holder to manage asbestos in non-domestic premises.
Every person has a responsibility to cooperate with the duty holder in complying with his duties.
Who is the dutyholder under CAR 2012?
- The dutyholder responsible for the management of asbestos in non-domestic premises.
- CAR 2012 states this is every person who, by virtue of a contract or tenancy, has an obligation for the repair or maintenance of those premises.
Does CAR 2012 cover residential properties?
- The regulations do not apply to domestic premises (private dwelling in which a person lives).
- However, legal precedents have established that common parts of flat (i.e. the entrance foyers, corridors, lifts, staircases, etc.) are not part of a private dwelling.
Under CAR 2012; What should the dutyholder do?
- Take reasonable steps to determine the location of materials likely to contain asbestos.
- Make and maintain an asbestos register identifying the location of the ACMs
- Assess and monitor the condition of ACMs
- Produce a management plan to assess the risk of exposure of ACMs and measures necessary to manage the risk.
What guidance has the HSE produced in relation to asbestos?
L143: Approved Code of Practice: Managing and Working with Asbestos (CAR 2012).
Who can undertake an asbestos survey?
A competent /qualified surveyor who must have:
- Sufficient training
- Qualifications
- Experience
Accredited by organisations such as ISO 17020
What are the types of asbestos surveys?
Management Survey
- To locate (as far as reasonably practical) the presence of ACMs in the building and assess their condition.
- It usually involves some sampling but is not intrusive.
- Will also involve presuming the presence and absence of ACMs.
Refurbishment and Demolition Survey
- Required before any refurbishment or demolition work is carried out.
- The survey will be fully intrusive and involve destructive inspection.
- Samples will be taken for analysis.
What types of samples are taken during an R&D survey?
- Bulk sample: Suspect ACMs are taken and analysed by a laboratory technician.
- Air testing: this is a collection of fibres using a filter which is then examined to count the number of fibres.
What is included within the asbestos report?
- Executive summary
- Introduction and scope of works
- General site information
- Survey results
- Conclusions and actions
- Sample results
What is an asbestos register?
It is a live document and should be revised should the dutyholder remove or encapsulate any asbestos, find new areas of asbestos or the current asbestos deteriorates.
What is an asbestos management plan?
- The management plan should include the asbestos register.
- Identify the person responsible for ACM management.
- Timetable for implanting the plan
- Monitoring arrangements
- Emergency actions in the event of asbestos fibre release
- Mechanism for informing employees and visitors the location of the ACMs and the risks.
How do workers protect themself when removing ACM’s?
By wearing impervious overalls, respirators with appropriate filters, hygiene facilities for decontamination, showers etc.
Describe the disposal process for asbestos?
- Consult with the disposal authority.
- Asbestos was stored within special sealed skips.
- Maintain strict system of records with consignment notices and disposal tickets.
Asbestos; What paperwork should the licensed contractors provide?
- Insurance certificates
- Training records of the operatives.
- Air monitoring results
- Maintenance records of the equipment
- Consignment notices / disposal tickets
Is a license required for all asbestos works?
No, not all work with asbestos material requires a licenced contractor.
This depends on the materials worked on and the type of work to be done.
There are three categories of asbestos works, these are:
– Licensed Works: Higher risk ACM’s (sprayed coatings, lagging and insulation board).
– Notifiable non-licensed works: Works that does not require a licence but the HSE must be notified; for example, encapsulating ACM’s in good condition.
– Non-licensed works: Lower risk ACM’s such as asbestos cement and textured decorative coatings.
Any work with asbestos must be done with care and compliance with the Control of Asbestos Regulations 2012 to prevent exposure to asbestos.
If in doubt consult with professional asbestos consultants.
How are the HSE notified about the asbestos works?
- The licensed asbestos contractor submits a form to the HSE 14 days prior to the commencement of the works.
- The form includes details on the proposed work, a suitable plan of works, equipment specification and copy of the license.
What lease clauses would consider when considering a tenant’s dilapidations liability?
The demised premises, clauses such as reinstatement, repair, redecoration, yield up, statutory obligations, fees
What are the types of dilapidations schedule?
Interim Schedule – Claims during the term
Terminal Schedule – Claims near the end of the term
Up to what point can you serve an interim dilapidations schedule?
An interim schedule can be served up to 3 years before the end of the lease term.
Between 3 years and the end of the lease term, a terminal schedule has to be served.
What remedy can be sought from claims at the end of the term?
Damages is the only remedy that can be sought at the end of the term
What remedies can be sought from claims during the term?
- Damages
- Forfeiture
- Entry to carry out the repair followed by a claim for costs.
- Specific performance
How can you go about limiting a dilapidations claim?
Schedule of condition prior to lease commencement.
Reviewing the lease covenants to assess the tenant’s liability.
Assess the costs for exaggerated items.
Also determine any possibility for using s18 arguments.
Describe the two limbs of section 18 of the Landlord and Tenant Act 1927?
Limb 1: Diminution of the reversion
Damages for the breach of the repairing covenant shall not exceed the amount by which the value of the premises is diminished owning to the breach.
Limb 2: Supersession
No damages shall be recoverable if the premises are to be significantly altered to such an extent that they render the repairs valueless
In terms of Dilapidations, if you were acting on behalf of the Landlord what various inspections/reports could you prepare?
- Interim, Terminal or Final Schedule of Dilapidations
- Schedule of condition
- Condition survey in relation to breaks
If a client asks you to act on his behalf in a dilapidations situation, what questions would you ask?
- Are you landlord or tenant? Who is the landlord/tenant?
- At what stage in the lease is it/What is the current situation?
- Is it a full repairing and insuring lease or an internal repairing lease only?
- Can I have a copy of the lease and any associated documents licences to alter, licences to assign, schedule of condition etc?
- How can I arrange access?.
What does ‘Without Prejudice’ mean, when would you use it and would you send everything without prejudice?
By stating “Without Prejudice,” negotiations can be entered into openly and potentially without the fear of anything that is said during the negotiations being used in evidence at a trial, should the negotiations fail.
There must be a dispute.
The content of the communication must be a genuine attempt to settle the dispute.
Dilaps; What is the difference between express and implied obligations?
Express terms are terms that have been specifically agreed within the contract.
Implied terms are terms that are not mentioned within the contract but apply to it either by statute or the courts.
What relationship does a schedule of condition have to a schedule of dilapidations?
A Schedule of Condition may be agreed between the Landlord and Tenant at the commencement of a lease. This will usually be a document with photographic evidence of the condition of the property at the outset, which can be attached to the lease and limit the Tenant’s repairing liability, depending upon the wording of the lease.
When advising clients on an exit strategy for dilapidations – what are their options?
Negotiating a financial settlement in lieu of works.
Tenant undertakes the works ahead of lease expiry.
Landlord undertakes the works following lease expiry and recovers the cost from the tenant.
Windermere Golf Club; What is the purpose of a building reinstatement cost assessment?
To provide accurate costs for the reinstatement of the buildings and structure in the event of a total loss.
This was needed for setting the correct sum insured for the property insurance policy.
Windermere Golf Club; How did you confirm the clients brief?
I confirmed the client’s brief through a detailed discussion with them.
I reviewed the purpose of the assessment, the key areas to focus on during the inspection, and established their expectations in terms of timelines and format of the report.
Windermere Golf Club; Why did you check if this was for insurance purposes and not valuation and how did you verify this?
– I confirmed that the reinstatement cost was for insurance purposes during the initial instruction to ensure I was acting within my level of competence.
– If a valuation was required an RICS registered valuer would have been required.
I requested formal written clarification from the client.
I studied their insurance policy in detail to understand the nature of coverage and ensure that the assessment aligned with the expectations of the insurers.
Windermere Golf Club; RCA What is the base date and why is this important?
The current reinstatement cost at today’s date, or Day One of the insurance policy.
It is important for the client to understand that the reinstatement cost is valid for that specific base date and costs may increase over time due to inflation or other factors.
I always confirm the base date in writing to the client ensures clarity regarding the point in time at which the cost data apply.
Windermere Golf Club; What observations did you make during your inspection of the club house?
During my inspection, I noted its general condition and state of repair.
I observed the types of materials used and any modifications made to the original structure.
Windermere Golf Club; What was included within your report?
– The report included a brief description of the property, noting its location, size, and use.
– It provided details of the building construction.
– The methods used in the assessment.
– A comprehensive breakdown of the reinstatement costs.
– The report concluded with a recommendation for the sum to be insured for.
Windermere Golf Club; How did you measure the building?
I determined the determine the GIFA measurements of the building in accordance with the RICS Code of Measurement Practice 6th Edition.
If the property would have been residential /office I would have reffered to the RICS Property measurement professional statement in accordance with IPMS 2.
I am there has since been the implementation of IPMS all buildings/
Windermere Golf Club; What role did BCIS play in your assessment?
The Building Cost Information Service was instrumental in providing relevant and updated cost information.
I relied on it for accurate costs of various construction elements and for adjusting the prices as per locality and base date.
Windermere Golf Club; What were the specific inclusions and exclusions of the report?
I made it clear that costs included demolition and site clearance, professional fees, and costs related to compliance with current Building Regulations.
Exclusions were for any costs associated with land value and VAT on professional fees.
What items did you consider when preparing the building reinstatement cost assessment?
- Site clearance
- Building foundations
- Erection of the replacement building
- Installation of Electrical & Mechanical Services
- Professional Fees.
Windemere Gold Club; What made this instruction a challenge?
– I reviewed the asbestos register before my site inspection which identified ACM’s to the club house.
– I included an uplift to the cost of demolition due to higher disposal costs.
– I consulted with a senior member of staff for guidance on this.
Are there any RICS documents relating to BRCA’s?
Yes the RICS Professional Standard on reinstatement cost assessments 3rd edition 2018.
It is advised by the RICS that re-assessments of the reinstatement costs should be made on a regular basis. This would typically comprise an annual desktop assessment in order to reflect inflationary effects and a full review and assessment every three years.
Or following any event that would materially affect the reinstatement costs of building, such as extensions or significant alterations.
What is a Schedule of Condition?
A schedule of condition is a factual record of the condition of a property.
This typically involves detailed photographs and a written report outlining the condition of the property at a specific point in time.
The schedule of condition details the state of repair and any defects before the commencement of a lease to potentially limit liability to provide a comparative condition of the property at the end of the lease term.
This could save the tenant from a costly dilapidation claim to put the property back to a condition better than the initial condition.
Are there different types of schedule of condition and when would you use each one?
Full descriptive Schedule of condition
– Full description of building elements together with condition.
– Photographic references to each item.
– Maximises client protection.
Photographic Schedule of condition
– Photographs only
– Including itemised breakdown of each room with photo reference
– Including reference plan
– Often a cheaper alternative and may be beneficial for newly built premsis with little disrepair.
What prompted you to conduct initial research about the barn at Whitewell?
– I always carry out desktop research before my inspections.
– My understanding of the local area and the historical significance prompted me to conduct initial research.
Burholme Farm; How did you carry out your desktop research?
- I reviewed the National Heritage List for England (NHLE) to identify the buildings history and significance.
- From this, I identified the adjacent farmhouse was a Grade II listed building.
- I reviewed the Historic England advise note 10 for further guidance on identifying the curtilage of listed buildings specifically farm buildings.
- I viewed the site via google maps and identified the site layout and the close proximity and link between the farmhouse and the barn.
Burholme Farm; What was the findings from your site visit?
– The general condition of the barn
– It’s close connection with the farm house and local landscape.
Burholme Farm; Why did you consider the agricultural link between the barn and the farmhouse was important?
The agricultural link supported the barn’s historical significance and local context.
Preserving this connection was important to preserve the area’s agricultural history.
Burholme Farm; What details did you discuss with the local authority?
– The proposed project scope and condition of the barn roof.
– The historical significance of the farmhouse and close association with the barn.
– The efforts that would be made to preserve it during the proposed work.
Burholme Farm; Why did the barn require listed building consent when it wasn’t listed?
Structures that pre-date 1948 and are within a curtilage of a listed building are to be treated as part of the listed building.
