Legal & Regulatory Compliance L1-3 Flashcards
WHAT ARE THE BUILDING REGULATIONS?
Regulations made under powers provided in the Building Act 1984, applying in England and Wales.
Exist to ensure the health and safety of people in and around all types of buildings - domestic, commercial, industrial, as well as provisions for accessibility, energy conversion.
WHAT IS DEEMED TO CONSTITUTE BUILDING WORK UNDER THE BUILDING REGULATIONS?
Defined in Regulation 3 of the Building Regs, defining the following projects as ‘Building Work’:
- Erection or extension of a building
- Installation or extension of a service / fitting controlled under the regs
- Alteration project that will temporarily or permanently affect the ongoing compliance of the building, serivce or fitting relating to structure, fire, or access to and use of buildings.
- Insertion of insulation into cavity wall
- Underpinning of foundations
WHAT ARE THE APPROVED DOCUMENTS?
Provide guidance on how the Building Regs can be satisfied, with legal status under the Building Act 1984.
14 Approved Documents in total, namely:
A) Structural
B) Fire Safety
C) Site preparation and resistance of moisture
D) Toxic substances
E) Resistance to teh passage of sound
F) Ventilation
G) Hygiene
H) Drainage and waste disposal
J) Combustion appliances and fuel storage system
K) Protection from falling, collision and impact
L) Conservation of fuel and power
M) Access to and use of buildings
P) Electrical safety
Q) Security
HOW WOULD YOU GET BUILDING REGULATIONS APPROVAL FOR A PROJECT?
Anyone carrying out building works subject to Building Regs is required by law to ensure it complies with Regs, and to use either the Local Authority or an Approved Inspector to document the works are compliant.
WHO IS RESPONSIBLE FOR ENSURING COMPLIANCE WITH THE BUILDING REGULATIONS?
Primary responsibility - the person carrying out the works.
If a client is carrying out work in their name, it is their responsibility.
If a client employs a builder to undertake work, the responsibility would usually be with the builder, however this should be confirmed prior to works commencing.
Client’s should bear in mind, as the owner of the building, it is ultimately the Client who would be served an enforcement notice if non-compliant.
WHAT IS THE DIFFERENCE BETWEEN LOCAL AUTHORITIES AND APPROVED INSPECTORS?
LA’s are responsible for ensuring works comply with the Building Regulations.
Approved Inspectors are approved by the LA to inspect, supervise and authorise building works in line with the Regulations.
WHY WOULD YOU OPT TO USE AN APPROVED INSPECTOR?
Generally AI’s are more responsive and open to giving advise than LA’s.
WHAT TIMEFRAMES ARE INVOLVED WITH THE APPOINTMENT OF AN APPROVED INSPECTOR?
If you appoint an Approved Inspector, they serve an Initial Notice on the council which has to be validated 5 working days before the project commences.
WHAT ARE THE 2 TYPES OF BUILDING REGULATIONS APPLICATIONS?
Building Notices - More suitable for minor resi alterations / extensions. No formal plans required, the works are reviewed via site inspection by a Building Control Officer. Works can commence 48 hours after issuing the Building Notice to notify the BCO.
Full Plans application - Detailed plans, specs and structrual calculations are submitted to the council, checked by LA to ensure compliance to necessary regulations. Approval is generally within 8 weeks, a formal approval is provided. A notice of rejection is issued if not satisfactory.
WHAT IS A PLAN CERTIFICATE?
Issued by Building Control, confirming the plans and details provided have been reviewed and confirmed to comply with Building Regs.
WHAT IS A FINAL CERTIFICATE?
Following works completion, a Final Cert will be issued by the LA if the actual works comply with Building Regs.
WHEN ARE CONSEQUENTIAL IMPROVEMENTS TRIGGERED FOR NON-DOMESTIC BUILDINGS UNDER PART L OF THE BUILDING REGS?
When a building is over 1,000m2 with works involving significant extension or refurb, and when extending or replacing a fixed building service.
If this is the case, 10% of the works value must be spent on improvements.
The costs must be reasonable with a payback period within 15 years.
WHAT ENFORCEMENT OPTIONS ARE AVAILABLE UNDER THE BUILDING REGULATIONS?
If works contravene Building Regulations, the LA or another person can:
- Take them to magistrates court, could be fined for the contravention
- Action usually taken against the contractor, however must procede within 6 months of the office (S.127 of Magistrates Court Act 1980)
Alternatively, the LA may serve enforcement notice on the owner requiring them to alter or remove work which contravenes regulations (S.36 of Building Act 1984).
If the owner does not comply, the LA can undertake the works itself and recover costs from the owner.
GIVE 4 EXAMPLES OF WORK WHERE PLANNING PERMISSION IS REQUIRED?
- New build construction situated on a vacant site
- New build extension that is not a permitted development
- Change of use that is not a permitted change of use
- Increased height of a fence adjacent to a highway above 1m in height
I NOTICE YOU WERE INVOLVED IN THE DEMOLITION AND REFURBISHMENT OF A CHURCH… WHAT APPROVALS DID YOU REQUIRE PRIOR TO UNDERTAKING DEMOLITION?
Demolition is dealt with under the Building Act 1984, requiring 6 weeks prior notice give to Local Authority Building Control before demolition begins.
The LA BC may issue a return notice within six weeks to specify conditions, i.e. protection to adjoining properties / public.
Demolition work must also comply with the Construction (Design and Management) Regs 2015, and a H&S plan produced by the Principal Contractor.
WHAT IS PERMITTED DEVELOPMENT?
Allow householders to improve and extend their homes without the need to apply for planning permission, some examples include:
- Erection of front porch
- Garage conversion,
- Side or rear extension
- Loft conversion
- Installation of roof lights / dormers
- Internal alterations to building
NOT allowed:
- Front extension
- Verandas & balconies
- Raised platforms
- Extensions larger than half of the original land around original house
- Extensions more than 4m high or larger than half the width of the original house
WHAT INFORMATION IS CONTAINED WITHIN A PLANNING APPLICATION?
- Name of client & agent
- Site address
- Works details
- Proposed materials
- Plans and elevation drawings
- Access statements
WHAT IS THE TIMEFRAME FOR PLANNING CONSENT?
8 weeks from validation of the application
Listed buildings consent can be longer
WHAT RECOURSE IS AVAILABLE IN THE CASE THAT PLANNING PERMISSION IS REJECTED?
If I felt there were grounds to appeal, I could prepare an appeal from stating reasons for the appeal with evidence, so long as it was within 6 months of the decision.
WHAT ENFORCEMENT ACTION CAN BE TAKEN REGARDING PLANNING PERMISSION?
A planning contravention notice can be issued requiring the owner to provide information to the Local Authority.
The LA can enter land and property with 24 hours notice to investigate suspected breaches.
Stop Notices can be issued to suspend ongoing works if necessary.
IS THERE A LIMIT AS TO WHEN ENFORCEMENT ACTIONS CAN BE TAKEN BY LOCAL AUTHORITIES?
Change of use to a single dwelling house must be actioned within 4 years from completion of works.
Everything else is 10 years from completion of works.
WHAT IS THE NATIONAL PLANNING POLICY FRAMEWORK (NPPF)?
Published in 2012, the National Planning Policy Framework sets out Government planning policies for England and how they are to be applied.
Designed to make the planning system less complex and more accessible, to protect the environment and to promote sustainable growth.
WHAT ARE THE POLICIES WITHIN THE NPPF?
Sustainable Development - In favour of sustainable development
Community decision making - Give decision making power to local communities with neighbourhood plans, changing to a decentralised decision making process leads to greater variation.
Town Centre renewal - Encourage town centre vitality, edge of town sites should only be used if connected to town centres, or no viable town centre sites available.
Housing - Identify and update deliverable housing sites sufficient for a 5 year supply.
WHAT IS A LISTED BUILDING?
A building placed on the Statutory List of Buildings of Special Architectural or Historic Interest.
HOW IS A BUILDING LISTED?
In England, to be considered for listing or de-listing, the process is an online application to English Heritage. The applicant does not need to be the owner to apply for listing.
English Heritage assesses buildings put forward for listing/de-listing, providing advice to Secretary of State on architectural and historic interest.
The SOS may seek advice from others, then decides whether to list / de-list.
WHAT CLASSES OF LISTED BULDING ARE THERE?
Three types of listed status for buildings in England and Wales:
Grade 1 - Exceptional interest, 2.5% of listed buildings
Grade 2* - Important with special interest, 5.8% of listed buildings
Grade 2 - Special interest warranting every effort to preserve, 90% of buildings
UNDER WHAT LEGISLATION IS A BUIILDING LISTED?
In England and Wales the authority is granted by the Secretary of State by the Planning (Listed Buildingd and Conservations Areas) Act 1990.
WHY ARE BUILDINGS LISTED?
Criteria includes architectural and histoci interest, and close historical associations with signifcant people or events:
- Age and rarity - Older the building, more likely to be listed. All buildings pre-1700 contain a significant portion of their original fabric will be listed. Most between 1700-1840, selection exercised from 1840, and particular selection after 1945. Buildings less than 30 years are rarely listed unless of outstanding quality and under threat.
- Aesthetic merits - Building appearance may be a deciding factor, however could be listed on social or economic history and be a bland building.
- Selectivity - Where a large number of buildings of a similar type survive, the policy is to only list the most representative or significant examples.
- National interest - Significant or distinctive regional buildings, i.e. represent nationally important but localised industry.
HOW CAN A BUILDING BE DE-LISTED?
In the same way a building is listed - application made to English Heritage who advise the Secretary of State to make the decision.
De-listing is possible but rare in practice, likely to take minimum of 5 months.
WHAT PART OF A BUILDING IS LISTED?
Despite the decision to list a building may be based on the architectural or historic interest of one small part of a building, the protection applies to the whole building.
Listing applies to cover the exterior fabric, internal fabric, fixtures, fittings, objects within the curtilage of the building even if they are not fixed.
CAN THE CURTILAGE OF A BUILDING BE LISTED?
Any buildings/structures constructed before 1948 falling within curtilage of a listed building are treated as part of the listed building, therefore approval required prior to altering.
WHEN WOULD YOU NEED TO APPLY FOR LISTED BUILDING CONSENT?
A listed building may not be demolished, extended or altered without special permission from the Local Planning Authority.
From validation to application, authorities are to respond in 8-12 weeks.
WHAT ENFORCEMENT ACTION CAN BE TAKEN IF A LISTED BUILDING IS FALLING INTO DISREPAIR?
S.125 of the Town and Country Planning Act 1990 provides LPA’s with the power to take steps for land to be cleaned up when its condition adversely affects the surrounding area.
Urgent Works Notices - Served where works are urgently necessary for preservation of a listed building, i.e. structrual integrity, weather tightness. Works can be undertaken by LPA and costs recovered from owner.
Repairs Notice - Leads to a compulsory purchase of a property by the LPA if repairs are not carried out. Works undertaken under a repairs notice are long-term to keep the building in good repair.
Compulsory Purchase Orders - Many LPA’s were reluctant to use their repairs powers in case the Owner served a purchase order on the council, thereby obliging the purchase and to repair at taxpayers expense.
IS THERE A TIME LIMIT ON ENFORCEMENT, AS IS THE CASE WITIH PLANNING?
No time limi for listed building consent.
WHAT ENFORCEMENT CAN BE TAKEN WHEN A LISTED BUILDING CONSENT HAS BEEN BREACHED?
An enforcement notice requiring the breach to be remedied can be issued.
A stop notice can also be issued.
WHAT IS THE TIME BAR ON PLANNING ENFORCEMENT?
The time limits are noted in S.171 of the Town and Country Planning Act 1990…
Four years allowed for LPA to enforce action where the breach comprises either opertional development (carrying out of unauthorised building) or change of use to a single dwellinghouse.
Ten years allowed for all other breaches of planning control.
IS THERE ANY DISPENSATION FOR VAT ON WORKS TO A LISTED BUILDINGS?
Dispensation - Exemption
Alterations and conversions of listed buildings designed as dwellings or non-business charity purposes are not subject to VAT, so long as the work is done by a VAT registered builder and with listed building consent.
PLEASE EXPLAIN YOUR UNDERSTANDING OF THE TERM DILAPIDATIONS?
Dilaps refer to breaches of lease obligations, either implied or expressed.
Typically relates to reinstatement, repair, redec and subsequent costs associated with undertaking the works.
A Schedule of Dilapidations is produced to identify breaches with costs to reinstate to the start of lease condition.
The legal remedy is a claim for damages if not rectified prior to lease expiry.
WHAT RICS GUIDANCE IS AVAILABLE ON DILAPIDATIONS?
RICS Guidance note ‘Dilapidations in England and Wales’ 2016.
Aims to provide best practice guidance on:
- Producing schedules of dilapidations - Document identifies breaches made under lease, setting out tenant obligations, breaches taken place along with cost of remediation required to rectify breaches.
- Scott Schedules - Schedule of Dilaps with additional info provided on each parties views on alleged breaches and subsequent remedial works required.
- Diminution Valuations - Valuation carried out in order to determine the reduction in value of a landlords properrty as a result of a tenants alleged breach of the lease terms.
WHAT ARE THE POTENTIAL ROLES OF A SURVEYOR IN RELATION TO DILAPIDATIONS?
Surveyors act as advisors, expert witnesses and dispute resolvers.
Required to identify and comment on alleged lease breaches, with a duty to act objectively without exaggerating or understating potential claims. They may be required to give evidence before a court or tribunal.
Surveyors are bound by RICS Practice Statement ‘Surveyors Acting as an Expert Witness’ where their duty ot clients is overriden by a primary duty to the courts.
WHAT IS THE DIFFERENCE BETWEEN A TERMINAL AND AN INTERIM SCHEDULE OF DILAPIDATIONS?
Terminal schedule - Prepared in anticipation of the lease end, issued on expiry or shortly afterwards. Includes reference to yield up obligations the tenant has when vacating the property and repairs required upon leaving.
Interim schedule - Prepared in contemplation of the remedy of any alleged breaches thought to have taken place prior to lease expiry, this does not include yield up obligations.
WHAT ARE THE 5 STAGES OF DILAPIDATIONS?
Stage 1 - Preparation - Obtaining relevant info
Stage 2 - Inspection - Establish original condition, standard of repair, consider age, character and location of the site.
Stage 3 - Prepare schedule, setting out obligations, breaches, remedial works required and associated costs required to rectify breaches.
Stage 4 - Quantified Demand is a document issued setting out:
- Cost of repair works
- Loss of value to property
- Rates, insuranec, security, utlities, cleaning, professional fees incurred
Stage 5 - Response and Negotiation (Under pre-action protocol, surveyors should meet within 26 days)
WHAT ARE BREAK CLAUSES?
Permit Tenants and Landlord to terminate leases on an intermediate date defined within the lease, agreed at lease exchange.
Conditional clauses prior to the break is deemed effective include:
- Vacant possession provided by the tenant
- Issue of Notice
- Compliance with certain lease obligations
WHAT IS THE PRE-ACTION PROTOCOL?
The protocol sets out conduct expected by both parties prior to escalation to court proceedings in relation to commercial property claims.
Establishes a reasonable process, sets timetable for information exchange and standards for the content and quality of schedules and quantified demands, in particular the pre-action negotiations.
WHAT ARE PART 36 OFFERS?
Created by the Civil Procedure Rules (CPR), a strategic move designed to encourage parties to settle a case before it reaches the courts, or risk spiralling legal costs.
Either party can make the offer which demands a reply within 21 days, which can be money and non-money offers, but must be genuine offers to settle and cannot be used as evidence of admission during the course of the trial. The judge himself will be unaware of the offer.
Used to save time and cost incurred in courts.
WHAT IS SECTION 18 OF THE LANDLORD AND TENANT ACT 1927?
S.18 of the Landlord and Tenant Act 1927 limits the amount a Landlord can claim for damages when a Tenant fails to fulfill their repair obligations under a lease, placing a statutory cap on damages.
Ensures the Landlord cannot claim more than teh actual diminution in the value of their property caused by the tenant’s breach of the repair covenant.
WHAT IS DIMINUTION IN VALUE IN DILAPS?
Diminution in the value of the Landlord’s reversion is a loss of value in a Landlord’s property as a result of a tenant’s failure to comply with lease convenants.
State of repair of a building represents only a small % of the value, particularly within city centre locations.
WHAT ARE CALDERBANK OFFERS?
Provides greater flexibility than a Part 36 Offer as it is not governed by strict court rules, allowing freedom for the offering party when making their offer, including length of time the offer remains for, costs and payments issues.
The price for flexibiltiy is that Calderbank offers, if accepted, create a binding contract between the parties.
Can be a useful tool to settle disputes when a Part 36 does not apply, i.e. small claims cases and arbitration proceedings.
WHAT IS THE LANDLORD AND TENANT ACT 1985?
Primary UK legislation for governing the minimum rights and responsibilities of both Landlords and Tenants, introduced in 1985, applicable to short leases of less than 7 years.
Key obligations of the Landlord include:
- Keep in repair the structure, exterior of the dwelling including drains, gutters and external pipes
- Keep in repair and proper working order the installtions in the dwelling for the supply of water, gas, electricity
- Keep in repair and propert working order the installations in the dwelling for space and water heating
Key obligations of the Tenant include:
- Ensure the property is clean
- Ensure the property is not damaged by themselves or anyone else
- Ensure the property is looked after, general maintenance is carried out, i.e. chaneg fuses, lightbulbs, unblock sinks.
WHT IS THE LAW OF PROPERTY ACT 1925?
Prior to 1925 the purchase of land was extremely difficult, lengthy and required extensive investigation into the seller’s right and title to sell the land.
The object of the 1925 legislatin was to facilitate and cheapen the transfer of land.
S.52 and S.53 provide that all conveyances of land must be in writing and by way of deed.
WHAT IS THE DEFECTIVE PREMISES ACT 1972?
Primary UK legislation stipulating the liability of Landlords and Contractors for poorly constructed and maintained buildings, and injuries caused by this.
Contractors and subbies have a duty of care to occupiers they construct / modify.
Landlords hold a duty of care towards their tenants and third parties who might injure themselves by their failure to keep the property in a good state of repair.
S.1 of the Act lays out duties and who it applies to - any person working on or in connection with a dwelling, including builders, electricians, plumbers, and other subbies.
S.4 of the Act establishes the Landlord duty to repair and maintain to anyone who could expect to be harmed by a breach, including tenants, friends, family and trespassers.
WHAT ARE THE CIVIL PROCEDURE RULES 1998?
Introduced to provide rules and practice directions for dispute procedures, improving accessibility to justice via the speed of legal proceedings, cheaper, and easier to understand for those outside the profession.
The Small Claims Track was introduced for a claim of less than £10k value.
Fast Track introduced for claims of less than £25k value.
Pre-action protocols introduced to reduce the number of outstanding issues prior to legal proceedings commencing, encouraging:
- Early info exchange
- Aid settlement of claim without commencement of legal proceedings
- Efficient case management where litigation cannot be avoided
WHAT IS THE PARTY WALL ACT 1996?
Enables land and building owners to undertake specific works on, adjacent to and adjoining premises while giving protection to potentially affected neighbours.
The act provides for a mandatory dispute resolution procedure which is decided by a statutorily appointed surveyor.
WHAT IS A PARTY WALL?
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 building of two owners.
EXPLAIN YOUR UNDERSTANDING OF THE DIFFERENT SECTIONS OF THE PARTY WALL ACT, WHEN THEY ARE RELEVANT AND WHAT NOTICE PERIODS APPLY?
Section 1 - New building on boundary:
- Section 1 Line of Junction Notice
- 1 month notice period
- Example, construction of new wall on boundary
Section 2 - Works to existing party structures:
- Section 3 Party Structure
- 2 month notice period
- Example, inserting DPC or raising party structure
Section 6 - Excavations near AO footings:
- Section 6 Adjacent Excavations
- 1 month notice period
- Example, if within 3m and below AO foundation, or, within 6m and intersects at 45 degree from bottom of AO foundation
UNDER SECTION 6, WHEN IS A NOTICE REQUIRED FOR ADJACENT EXCAVATIONS?
If a building owner wishes to excavate, if the excavation distance is 3m or less from the Adjoining Owner (AO) a notice must be served at least one month before works commence.
Example works, lay new foundations or drainage
UNDER SECTION 6, WHAT NOTICES AND TIMESCALES APPLY IF TEH EXCAVATION IS 6M OR LESS?
If within 6m of the AO and deeper than the property in question, this falls within Section 6.
Also, if excavation is at a 45 degree angle from the bottom level of the neighbouring foundation a notice is to be given 1 month before works commence.
WHEN IS SERVING A NOTICE NOT REQUIRED WITHIN PARTY WALL ACT?
Notices are not required for:
- Plastering
- Screws
- Chasing in wires / plugs
- When consent is received from the AO and occupiers before commencing works
WHAT ITEMS ARE INCLUDED WITHIN A PARTY WALL NOTICE?
- Name of the Building Owners (those proposing the work(
- Name of Adjoining Owner (those potentially affected)
- Indication that works are notifiable under the Party Wall Act 1996
- Proposed start in accordance with notice period required
- Addresses for correspondence
- Description of the works
- Drawings / structural info
PLEASE EXPLAIN YOUR UNDERSTANDING OF THE PROCEDURE FOR SERVING A PARTY WALL NOTICE?
When a notice is served, the AO can:
- Provide written consent within 14 days
- Provide written consent with conditions (may be refused) within 14 days
- Refuse consent which will commence a dispute resolution process
- Not respond which results in the matter being deemed a dispute after 14 days
- Serve a counter notice requesting additional works to be done at the same time, which may resuly in a cost implication to the AO
If consent is not gained, the Act facilitiates appointment of an independent surveyor to act on behalf of the AO.
Where a dispute arises, there is an agreed surveyor route which if more cost effective for the building owner, but only occurs if both parties agree to do so in writing.
