Legal & Regulatory Compliance

Question 1

What are the Building Regulations?

Answer 1

The Building Regulations are made under powers provided by the Building Act 1984, and apply in England and Wales.
They exist to ensure the health and safety of people in and around all types of buildings (domestic, commercial and industrial).
They also contain provisions for energy conservation, access to , and the use of buildings.

Question 2

What is deemed to constitute building work under the Act?

Answer 2

Building Work is defined in Regulation 3 of the Building Regulations.
The definition means that the following types of project amount to “Building Work”:
- The erection or extension of a building.
- The installation or extension of a service or fitting which is controlled under the regulations.
- An alteration project involving work which will temporarily or permanently affect the ongoing compliance of the building, service, or fitting within the requirements relating to structure, fire or access to and use of buildings.
- The insertion of insulation to a cavity wall, and the underpinning of foundations to a building.

Question 3

What are the Approved Documents?

Answer 3

The Approved Documents provide guidance on how the Building Regulations can be satisfied. They have legal status under the Building Act 1984 and there are 14 approved documents in total.

Question 4

Can you please name some of the approved documents?

Answer 4

A - Structural
B - Fire
C - Site Preparation and Resistance to Moisture
D - Toxic Substances
E - Sound
F - Ventilation
G - Hygiene
H - Drainage
J - Combustion Appliances & Fuel Storage
K - Protection from Falling
L - Conservation of Fuel and Power
M - Access to & Use of Buildings
P - Electrical Safety
Q - Security

Question 5

How would you get Building Regulations approval for a project?

Answer 5

Anyone wanting to carry out building work which is subject to the Building Regulations is required by law to make sure it complies with the regulations and to use one of the two types of Building Control service available:
- Local Authority
- Approved Inspectors

Question 6

Who is responsible for ensuring compliance with the Building Regulations?

Answer 6

The primary responsibility for achieving compliance with the regulations rests with the person carrying out the building work.
- If a client is carrying out the work in their name, the responsibility will be theirs.
- If the client employs a builder the responsibility will usually fall to the builder they are appointing, however they should confirm this position at the very beginning.
- Clients should also bear in mind that if they are the owner of the building, it is ultimately the client who may be served with an enforcement notice if the work does not comply with the regulations.

Question 7

What is the difference between Local Authorities and Approved Inspectors?

Answer 7

• Local Authorities are responsible for ensuring work complies with the Building Regulations.
• Approved inspectors are approved by the Local Authority to inspect, supervise and authorize building works against the regulations.

Question 8

Why would you opt to use an Approved Inspector?

Answer 8

Because they are generally seen to be more responsive and open to giving advice than Local Authorities.

Question 9

Are there any timeframes involved with the appointment of an Approved Inspector?

Answer 9

If you appoint an Approved Inspector they need to serve an initial notice on the Council an this has to be validated 5 working days before the project commences.

Question 10

What are the to types of Building Regulations application?

Answer 10

1 - Building Notices - More suitable for minor residential alterations or extensions. No formal plans need to be issued for approval as the work is reviewed via site inspection. Work can be commenced 48 hours after issuing the building notice, however the Building Control Officer must be notified when the works are being carried out so they can undertake an inspection.
2 - Full Plans Application - Where detailed plans, specifications, and structural calculations are submitted to the Council. There are checked by the Local Authority to ensure they meet necessary regulations. Generally, approval is given within 8 weeks but this can vary between local authorities. When the plans are satisfactory a formal approval is provided. I some cases a rejection may be issued if they are not satisfactory.

Question 11

What is a plan certificate?

Answer 11

A certificate issued by Building Control and confirms the plans and details provided have been reviewed and confirmed to comply with the Building Regulations.

Question 12

What is a Final Certificate?

Answer 12

Following completion of the works, a Final Certificate will be issued by the Local Authority if the actual works comply with the Building Regulations.

Question 13

When are consequential improvements triggered for non-domestic buildings under Part L of the Building Regulations?

Answer 13

• When a building is over 1000m2 and the works involve significant extension or refurbishment, and also when extending or replacing a fixed building service.
• If this is the case then 10% of the value of the works should be spent on improvements.
• The costs must be reasonable and with a payback period of 15 years.

Question 14

What enforcement options are available under Building Regulations?

Answer 14

• If a person carrying out building work contravenes the Building Regulations, the Local Authority or another person may decide to take them to the Magistrates Court where they could be fined for the contravention.
• This actions will usually be taken against the main builder or contractor, although proceedings must be taken within 6 months of the offence (section 127 of the Magistrates Courts Act 1980).
• Alternatively, or in addition, the Local Authority may serve an enforcement notice on the owner requiring them to alter or remove work which contravenes the regulation (Section 36 of the Building Act 1984).
• If the owner 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.

Question 15

I notice that you were involved in the demolition and refurbishment of a church vestry. What approvals did you require prior to undertaking the demolition?

Answer 15

• Demolition is dealt with under the Building Act 1984.
• Generally it requires 6 weeks prior notice to be given to the Local Authority Building Control before demolition begins.
• The Local Authority Building Control may decide to issue a notice within 6 weeks on receipt of the notification to specify conditions that need to be met, these may include precautions to protect adjoining properties and the public.
• Demolition work must also comply with the CDM Regs and a health and safety plan produced by the Principal Contractor.

Question 16

Give 4 examples of work where planning permission is required.

Answer 16

1 - A new build situated on a vacant site.
2 - A new build extension that is not a permitted development.
3 - A Change of Use that is not a permitted change of use.
4 - The increase in the height of a fence adjacent a highway above 1m in height.

Question 17

What information is contained within a planning application?

Answer 17

• Name of Client
• Name of Agent
• Site Address
• Details of the Works
• Details of proposed materials
• Plans and elevation drawings
• Access statements

Question 18

What is the timeframe for planning consent?

Answer 18

• 8 weeks from the validation of the application.
• Listed Building Consent can be longer.

Question 19

What recourse is available in the case that permission is rejected?

Answer 19

If I felt there were grounds to appeal then I could have prepared an appeal form stating the reasons for the appeal with evidence.
This can be appealed in the courts within 6 months of the decision.

Question 20

What enforcement action can be taken?

Answer 20

• A planning contravention notice can be issued requiring the owner to provide information to the Local Authority.
• The Local Authority can enter land and property within 24 hours notice to investigate any suspected breaches.
• Stop Notices can also be issued to suspend ongoing works.

Question 21

is there a limit as to when enforcement actions will be taken?

Answer 21

• Change of use to a single dwelling house is 4 years from completion of the works.
• Everything else is within 10 years from completion of the works.

Question 22

What is NPPF?

Answer 22

• The National Planning Policy Framework sets out the governments planning policies for England and how these are expected to be applied.
• The NPPF was published on 27th march 2012
• it is designed to make the planning system less complex and more accessible, to protect the environment and to promote sustainable growth.

Question 23

What are the policies behind the NPPF?

Answer 23

1 - Sustainable Development - At the heart of the NPPF is a presumption in favor of sustainable development.
2 - Community Decision Making - To give decision making power back to the local communities with neighborhood plans, and therefore changing to a decentralized decision making process is going to lead to greater variation.
3 - Town Centre Renewal - Aims to encourage town centre vitality suggesting that edge of town sites should only be used if connected to town centres, or if no viable town centre sites are available.
4 - Housing - Identify and update annually a supply of deliverable sites sufficient for a 5 year supply of housing.

Question 24

What is a Listed Building?

Answer 24

A Listed Building is a building that has been placed on the Statutory List of Buildings of Special Architectural or Historic Interest.

Question 25

How is a building Listed?

Answer 25

• In England, to have a building considered for listing or de-listing, the process is to submit an application form online to English Heritage.
• The applicant does not need to be the owner of the building to apply for it to be listed.
• 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.

Question 26

Under what legislation is a building listed?

Answer 26

• In England and Wales the authority for listing is granted to the Secretary of State by the Planning (Listed Buildings and Conservation Areas) Act 1990.

Question 27

What classes of listed buildings are there?

Answer 27

There are 3 types of listed status for buildings in England and Wales.
1 - Grade 1 - Buildings are of exceptional interest with just 2.5 of listed buildings being Grade 1.
2 - Grade 2* - Buildings are particularly important of more than special interest with around 5.8% of Listed Buildings falling into this category.
3 - Grade 2 - Buildings are of special interest warranting every effort to preserve them with around 90% of listed buildings falling into this category.

Question 28

Why are buildings listed?

Answer 28

The criteria for listing architectural interest, historic interest and close historical associations with significant people or events.
The criteria include:
- Age and rarity - the older the building, the more likely it is to be listed. All buildings erected before 1700 that contain a significant proportion of their original fabric will be listed. Most buildings between 1700-1840 are listed. After 1840 more selection is exercised and particularly careful selection is applied after 1945. Buildings less than 30 years old are rarely listed unless they are of outstanding quality and under threat.
- Aesthetic Merits - The appearance of a building can also play a deciding factor, however building that have little visual appeal maybe listed on grounds of representing particular aspects of social or economic history.
- Selectivity - Where a large number of buildings of a similar type survive, the policy is only to list the most representative or significant examples.
- National Interest - Significant or distinctive regional buildings for example those that represent a nationally important but localised industry.

Question 29

What part of the building is listed?

Answer 29

• Although the decision to list a building may be made on the basis of the architectural or historical interest of one small part of the building, the listing protection nevertheless applies to the whole building.
• Listing applies not just to the exterior of the fabric itself, but also to the interior, fixtures, fittings and objects within the curtilage of the building even if they are not fixed.

Question 30

What about the curtilage of a building?

Answer 30

Any buildings or structures constructed before 1st 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”.

Question 31

Can a listed building be de-listed?

Answer 31

• In the same way as a building is listed, an application is made to English Heritage and they advise the secretary of state who make the decision.
• De-listing is possible but rare in practice and is likely to take a maximum of 5 months.

Question 32

When would you need to apply for Listed Building Consent?

Answer 32

A listed building may not be demolished, extended, or altered without special permission from the Local Planning Authority.

Question 33

How long does it take to gain Listed Building Consent?

Answer 33

From validation of application most authorities aim to have a decision within 8 weeks although they can take as long as 12 weeks.

Question 34

What enforcement action can be taken if a Listed Building is falling into disrepair?

Answer 34

• Section 215 of the Town and Country Planning Act 1990 (the Act) provides a local planning authority (LPA) with the power, in certain circumstances, to take steps requiring land to be cleaned up when its condition adversely affects the amenity of the area.
• Urgent Works Notices may be served where works are urgently necessary for the preservation of a listed building. mainly to do with maintaining structural integrity and weather tightness. This allows works to be undertaken by the LPA and the cost recovered from the owner.
• Repairs Notices can lead to compulsory purchase of 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.
• Compulsory Purchase Orders. Many Local Authorities were reluctant to use their repairs powers. They were afraid that the owners might respond, as they are entitled to do, by serving a purchase order on the council. The council would thereby by obliged to purchase the buildings and repair it at the taxpayers expense.

Question 35

What enforcement action can be taken when a Listed Building Consent has been breached?

Answer 35

• An enforcement notice requiring the breach to be remedied can be issued.
• A stop work notice can also be issued.

Question 36

Is there a time bar on Listed Building Consent enforcement as in the case with planning?

Answer 36

There in no time limit for Listed Building Consent.

Question 37

What is the time bar on planning enforcement?

Answer 37

• There are two time limits, laid down in Section 171B of the Town & Country Planning Act 1990.
• Four years is the time allowed for an authority to take enforcement action where the breach comprises either operational development (the carrying out of unauthorized building, engineering, mining or other operations) or change of use to use as single dwelling house.
• Ten years is the time allowed for all other breaches of planning control.

Question 38

Is there any dispensation for VAT on works to a Listed Building?

Answer 38

Alterations to Listed Buildings that are designed as dwellings or used for qualifying residential or non-business charity purposes, together with those that are being converted to such, are not subject to VAT as long as the work is done by a VAT registered builder and with Listed Building Consent.

Question 39

Please explain your understanding of the term Dilapidations.

Answer 39

• Dilapidations refer to breaches of lease obligations, either implied or expressed.
• Typically they relate to reinstatement, repair, redecoration and subsequent costs associated with carrying out of these works.
• A schedule of dilapidations is normally produced to identify any breaches of the lease.
• The legal remedy is typically a claim for damages if not rectified prior to lease expiry.

Question 40

Are you aware of any RICS guidance on dilapidations?

Answer 40

The RICS produces the guidance note Dilapidations in England and Wales 7th Edition (2016) which aims to provide best practice on the following:
- Producing schedules of dilapidations. A document identifying breaches made under a lease or tenancy. This normally sets out the obligations under the lease, the breaches thought to have taken place, along with any identified costs of remedial works required to rectify the breaches.
- Scott Schedules. A schedule of dilapidation with additional information provided on each of the parties views on the alleged breaches and subsequent remedial works that are required.
- Diminution Valuations. A valuation carried out in order to determine the reduction in value of a landlords property as a result of tenant alleged breaches of the lease terms.

Question 41

What are the potential roles of a surveyor in relation to dilapidations?

Answer 41

• Surveyors can act as advisors, expert witnesses or dispute resolvers.
• They may be required to identify and comment on alleged breaches of the lease and have a duty to act objectively without over exaggerating or under estimating potential claims.
• As a result of their duties they may also be required to give evidence before a court or tribunal.
• Surveyors are bound by the RICS Practice Statement “Surveyors Acting as Expert Witness” where their duty to clients is overridden by a primary duty to the courts.

Question 42

What are the 5 Stages of Dilapidations?

Answer 42

Stage 1 - Preparation (obtain all relevant information, leases etc)
Stage 2 - Inspection. Establish original condition, standard of repair, taking into consideration age, character and location.
Stage 3 - Preparation of a Schedule of Dilapidations. Setting out obligations of the lease, the breaches thought to have taken place, and identified costs associated with the works in order to remedy.
Stage 4 - Quantified Demand, which sets out:
- The cost of the repair works.
- The loss of value to the property.
- The loss of rent and service charges.
- Insurance.
- Security
- Utilities.
- Cleaning.
- Finance costs
- Professional fees incurred.
Stage 5 - Response and Negotiation (under pre-action protocol, surveyors should meet within 26 days.

Question 43

What is the difference between a terminal schedule of dilapidations (SoD) and an interim SoD?

Answer 43

• Terminal SoD is a term given to a SoD that is prepared in anticipation of the lease ending and is either issued on expiry of the lease term or shortly afterwards. This also includes reference to yield up obligations the tenant has when vacating the property and any repairs that are required upon leaving.
  Interim SoD is a schedule that is prepared in contemplation of the remedy of any alleged breaches that are thought to have taken place prior to the lease expiry and this does not contain any reference to yield up obligations that result from the tenant leaving the property.

Question 44

What are Break Clauses?

Answer 44

They permit tenants and landlords to terminate leases on an alternative date during the lease term.
Some clauses are conditional which require compliance before a break is deemed effective, for instance:
- Vacant possession is provided by the tenant.
- Issue of Notice.
- Compliance with certain lease obligations.

Question 45

What is the Pre-Action Protocol?

Answer 45

This protocol sets out the particular conduct a court would expect from both parties prior to escalation to court proceeding in relation to commercial property claims.
It establishes a reasonable process and timetable for the exchange of information relevant to a dispute and sets standards for the content and quality of a schedules and quantified demands, in particular the conduct of pre-action negotiations.

Question 46

What are Part 36 Offers?

Answer 46

A part 36 Offer is a written offer to settle which must specify a period of not less that 21 days during which it can be accepted.
If it is not accepted within the time period and the other party does not achieve a higher value than that contained within the Part 36 Offer, there will be cost consequences for the claimant.

Question 47

What are Calderbank offers?

Answer 47

• A Calderbank offer provides greater flexibility than a Part 36 Offer because it is not governed by strict court rules.
• This is a great advantage because it allows the party making the offer (the “offeror”) to be creative when making their offer, especially when putting forward terms about the length of time the offer remains open for acceptance, costs and payment issues.
• The price for flexibility is that Calderbank offers, if accepted, creating a binding contract between the parties.
• A Calderbank offer can be a useful tool to settle disputes where Part 36 does not apply, for example in cases allocated to the small claims track and arbitrations proceedings.

Question 48

What is the Landlord and Tenant Act 1985?

Answer 48

The L&T Act 1985 is the primary legislation for governing the minimum rights and responsibilities of both Landlords and Tenants.
The act was introduced in 1985 and is applicable to all short leases of less than 7 years.
Key obligations of the Landlord include :
- To keep in repair the structure and exterior of the dwelling, including drains, gutters and external pipes.
- To keep in repair, and proper working order, the installations in the dwelling for the supply of water, gas and electricity.
- To keep in repair and proper working order the installations in the dwelling for space heating and heating water.
Key obligations of Tenant include:
- Ensuring the property is clean.
- Ensuring the property is not damaged by themselves, or anybody else.
- Ensuring the property is looked after and general maintenance is carried out such as changing fuses, light bulbs and unblocking sinks if required.

Question 49

What is the Law of Property Act 1925?

Answer 49

• Prior to 1925, the purchase of land was extremely difficult for potential purchasers. The process was lengthy and required extensive investigation into the sellers right to sell the land.
• The main object of the 1925 legislation was to facilitate and cheapen the transfer of land.
• In particular, Sections 52 and 52 provide that, subject to limited exceptions, all conveyances of land (or interests therein) must be in writing, and where required, by way of deed.

Question 50

What is the Defective Premises Act 1972?

Answer 50

• The Defective Premises Act 1972 is one of the primary pieces of UK legislation that stipulates the liability of Landlords and Contractors for poorly constructed and poorly maintained buildings in addition to any injuries that may result because of this.
• Contractors and their sub-contractors hold a duty of care to the occupiers of property they construct or modify.
• Landlords also hold a duty of care towards their tenants and third parties who might be injured by their failure to keep their property in a good state of repair.
• Section 1 of the Act lays out the duty of care and who it applies to. The duty applies to any person taking on work for, or in connection with, the provision of a dwelling and is something including not only builders but also electricians, plumbers and other sub-contractors.
• Section 4 establishes a general duty to repair and maintain property owned by landlords to anyone who could reasonably be expected to be harmed by a breach. This covers tenants, their friends and family, and also trespassers.

Question 51

What are the Civil Procedure Rules 1998?

Answer 51

• The Civil Procedure Rules were introduced to provide rules and practice directions for dispute procedures.
• The rules were designed to improve accessibility to justice by improving the speed of making legal proceedings in addition to making them cheaper and easier to understand for those outside the legal profession.
• The Small Claims track was introduced for claims with a value of less than £10,000.
• The Fast Track was introduced for claims with a value of less than £25,000.
• Pre-Action Protocols were also introduced to reduce the number of outstanding issues prior to legal proceedings commencing which encourages :
• The early exchange of information
• Aiding settlement of the claim without commencement of legal proceedings.
• Produces a foundation for efficient case management where litigation cannot be avoided.

Question 52

What is the Party Wall Act 1996?

Answer 52

• The Party Wall Act 1996 enables land and building owners to undertake certain specific works on, adjacent to, adjoining premises while giving protection to potentially affected neighbors.
• In addition, the Act provides for mandatory dispute resolution procedure which is decided by a statutorily appointed surveyor.

Question 53

What is a Party Wall?

Answer 53

A Party Wall is a wall standing on the land of two owners, or the part of a wall standing on the land of one owner that separates the buildings of two owners.

Question 54

Please explain your understanding of the different Sections of the Party Wall Act, when they are relevant and what notice periods apply.

Answer 54

Section 1 - New Building on Boundary; 1 Month
Section 2 - Works to Existing Party Structures; 2 Months
Section 6 - Excavations near AO Footings; 1 Month

Question 55

Under Section 6 of the PW Act 1996 when is a notice required for adjacent excavations?

Answer 55

• If a building owner wishes to excavate in order to lay new foundations or lay new drainage, if the excavation if the excavation is a distance of 3 meters from a building or structure belonging to an adjoining neighbor, a notice must be served at least one month before the works are scheduled to commence.U

Question 56

Under Section 6 of the PW Act 1996, what notices and timescales apply if the excavation is 6m or less?

Answer 56

• If the excavation is within 6m of the adjoining owners property, and deeper than the property in question, this also falls within Section 6.
• Also, if the planned excavation falls within an angle drawn downwards 45 degrees from the bottom level of the neighboring foundation, a notice must be given at least one month before the works are due to commence.

Question 57

When is serving a PW Notice not required?

Answer 57

Notices are not required for minor non-disruptive works such as:
- Plastering
- Screws
- Chasing in wires or plugs, and
- When consent is given by the adjoining owner and occupiers before commencing work.

Question 58

What items are included within a PW Notice?

Answer 58

• The name of the Building Owner(s)
• The name of the adjoining owner(s)
• Indication that the works are notifiable under the Act
• Proposed start date of the works in accordance with notice periods required under the Act
• Addresses for correspondence
• A description of the works
• Drawings
• Structural information

Question 59

Please explain your understanding of the procedure for serving a PW Notice.

Answer 59

When a Notice is served the adjoining owner can:
- Provide written consent within 14 days from the date of the notice.
- Provide written consent with conditions (which may be refused) in writing within 14 days.
- Refuse consent which will commence a dispute resolution process.
- Not respond, which will result in the matter deemed to be in disrepute after 14 days.
- Serve a counter notice requesting additional works be done at the same time which may result in a cost implication to the adjoining owner.
If consent is not obtained or notice ignored, the act facilitates the appointment of an independent surveyor to act on behalf of the adjoining owner.
Where a dispute does arise, there is an agreed surveyor route available which is often the more cost effective route for the building owner. This arrangement can only be made by agreement from both parties in writing.