Building control enforcement policy - Additional information

Appealing against enforcement action

Those affected by enforcement decisions have a right of appeal to the Regulator, Tribunal or Court. Appeals must be made within a certain time. We will set out these rights in writing at the same time that we act or serve notice.

You can also ask to discuss the matter with the Building Control Inspector, their Team Leader, or the Building Control Manager. You can also make a formal complaint against the service.

Competency and duty holders

The Building Regulations etc. (Amendment) (England Regulations 2023, applies to England and Wales in Law for jurisdiction purposes, but only to England for practical purposes at the time of writing) consider in Part 2A: Chapters 1 to 5 and Regulation 11A to 11O provides details on the subject of duty holders and competence.

A lack of demonstrable competence is a breach of the Building Regulations. The circular letter by the then Department of Levelling up, Housing and Communities (DLUHC) clarifies the connection between competency and compliance as follows:

"Anyone undertaking design work or building work will need to plan, manage, and monitor the work to ensure that it complies with all relevant requirements. When carrying out design work the designer or the principal designer, will be required to take all reasonable steps to ensure that the design is such that if the building work to which the design relates were built in accordance with that design the building work would comply with all relevant requirements, and when carrying out building work, the contractor or principal contractor, will need to ensure the building work they carry out is in compliance with all relevant requirements.

"As such there is not an expectation that proactive inspections of the duty holder and competence regime will be necessary when the work is compliant. However, when there is a failure to comply with the building regulations the duty holder and competence regulations will enable the building control authority (BCA) to track back through the design and building process for the project for each of the relevant duty holders and take appropriate action for non-compliance as appropriate."

When deciding whether to prosecute, Building Control will consider:

• the role of the client (domestic or otherwise), principal designer, and principal contractor both before work starts and as work progresses
• the seriousness and effect of the offence
• the foreseeability of the offence, or the circumstances leading to it
• the intent of the offender
• the skills, knowledge, and experience of the person or persons carrying out the work where there is a suspicion of failing or evidence of non-compliance with the building regulations
• the history of offending
• the deterrent effect of a prosecution, on the offender and others
• whether there is enough evidence to prove the offence

Amended timescales

The amendments by virtue of the BSA22 and the BA84 have changed the original time limits for Section 35 and Section 36 as above in England. See Table 2 in Annex A for timescales for previous amendments to the Building Regulations and related legislation from 2008 to 2023. There are also the timescales to consider for compliance and stop notices in Table 1 (below).

Before the 1 October 2023 the timescale for serving papers for a summary offence was 6 months from the relevant date. “The relevant date” means the date on which evidence sufficient to justify the proceedings comes into the knowledge of the person commencing the proceedings.

As noted in Table 1, the offences are now indictable and triable either way. Therefore, the advice of the Local Authority legal teams will need to be sought on the timing of the laying of papers for those types of offences in either the Magistrates or Crown Courts.

Section 35: breach of building regulations and related notices

Any breach that has had information laid before a magistrate’s court prior to the 1 of October 2023 (S35) or a notice served under (S36) will have to abide by the powers and time limits applicable at that time (see transitional provisions 2023 No.993 (C.59) Regulation 7)

On the 28 March 2024 in an additional Q&A relating to changes to the building control process for higher-risk buildings and wider changes to procedural building regulations, DLUHC clarified that:

"Compliance notice powers became available on 1 October 2023 for all projects, including those that started under the pre-1 October system. For a compliance notice to be issued there needs to be a contravention (or the likely contravention) of a relevant provision of building regulations or a requirement imposed by the regulations.

"From 1 October 2023, if there is a contravention on site, then a compliance notice can be given. A compliance notice can also be issued for a contravention that occurred pre-1 October as long as the contravention is ongoing at the point the notice is issued. When the breach occurred is irrelevant (unless the contravention occurred more than 12 months ago, in which case a compliance notice may not be issued), the building control authority just needs to be satisfied at the point of issue that a person appears to have contravened a relevant provision and that they want it to be rectified."

Retroactive use of Section 35 and Section 36

As part of the above Q&A it was confirmed by DLUHC in part 4.3 that:

"The new powers are retroactive. Whilst all the new powers became available on 1 October 2023 for all projects (The date of the offence is applicable from the 1st of October 2023 and would include building work that started under the pre-1 October 2023 system).

"So long as the contravention of building regulations is ongoing at the point of action being taken (and for the issue of section 36 notices is within the specified time limit), the new provisions can be applied to any project, irrespective of the start date.

"However, any prosecutions under section 35/35A already before a court on the 1st of October 2023, or section 36 notices served before that date, remain subject to the previous provisions.

"Stop notices in relation to section 35C(1)(b), the contravention of a compliance notice, can only be issued for breaches that occur post 1 October 2023 (as compliance notices are a new power). Whether the contravention started pre or post 1 October is irrelevant. For example, a compliance notice could be issued on or after 1 October for a contravention that occurred before that date (so long as the contravention is ongoing at the point of issue). 

"If the recipient fails to take the required action in the specified time period, then a stop notice can be issued. A stop notice under section 35C(1)(c) can be issued on or after 1 October 2023 for building work which breaches this condition, irrespective of when the breach started – as long the issue giving rise to a risk of serious harm is ongoing at the point of the stop notice is issued.”

Not only does the BA84 consider S 35 to 35C in terms of breaches, The Building Regulations 2010 (as amended) also contain Regulations 47 to 47H. It features:

• Regulation 47 and regulation 47A – provisions that do not apply to S35 and are excluded from Compliance Notices
• Regulation 47B – Compliance Notices: contents
• Regulation 47C – Stop Notices: contents
• Regulation 47D – Compliance and stop notices: giving of notices and notification to others
• Regulation 47E – Compliance and Stop Notices: withdrawal by BCA.
• Regulation 47F – Appeal to the First tier Tribunal in relation to a compliance notice or stop notice
• Regulation 47G – Application to the First-tier Tribunal in relation to extension of the specified period in compliance notice
• Regulation 47H – Application to the First-tier Tribunal for direction in relation to a stop notice

Compliance notices and stop notices

The BSA22 enables local authorities to issue compliance and stop notices where building regulations have been breached. Compliance notices will require specified remedial action by a set date.

Stop notices can only be issued in certain situations. These are:

• if carrying out work would contravene certain prescribed building regulations
• if an existing compliance notice has not been complied with
• if works carried out that contravene regulations and could potentially cause a risk of serious harm (in this case the stop notice will require work to be stopped altogether until remedial action has been taken)

A compliance notice or stop notice must relate to no more than 1 contravention or likely contravention of building regulations, or a requirement imposed under building regulations. This is to make sure the duty holder knows the exact nature of the contravention and what law has considered to have been breached.

Separate notices will apply to specific contraventions relating to the relevant building regulation. They will require bespoke remedies and compliance periods. This approach provides clarity about what is required from the developer and allows flexibility in managing the construction of complex sites.

The BCA will also take all reasonable steps to notify:

• the client, principal contractor (or sole contractor), and principal designer (or sole lead designer)
• the enforcing authority, where the contravention relates to Part B and the building is one to which the Regulatory Reform Fire Safety Order 2005 (RRO95) applies
• the regulator for social housing if the client is a private registered provider of social housing or, in relation to refurbishment work, is either a private or public registered provider of social housing
• the local housing authority for the area in which the building is located if the client is a landlord in relation to any dwelling contained in the building

There are separate types of notice under each section. Some key notices include:

• Section 35B2A – Compliance Notice; a notice requiring the recipient to take specified steps within a specified period
• Section 35B2B – Compliance Notice; a notice requiring the recipient to remedy the contravention or the matters giving rise to it within a specified period without describing what must be done to remedy the work or to avoid the contravention occurring
• Section 35C1A – Stop Notice; the carrying out of the work would contravene a provision of building regulations prescribed (currently applies to HRBs by way of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, S61
• Section 35C1B – Stop Notice; a compliance notice relating to the work has been contravened
• Section 35C1C – Stop Notice; the work contravenes a provision of building regulations, or a requirement imposed by virtue of such a provision, and the risk of serious harm condition is met, in that the use of the building in question, without the contravention having been remedied, would be likely to present a risk of serious harm to people in or about the building (this can be used if the criteria is met on or after 1 October 2023 for any building work regardless of when it started)

There are also powers relating to Section 35B and 35C where an injunction can be considered by the authority on application to the court in Section 36(6) of the BA84.

Application of Section 36 (Building Act 1984)

Where the solution is to alter or remove a contravention then the specified time limit will run from when the contravention occurred. To remove a Building Regulation contravention, by way of the service of an enforcement notice by the application of Section 36 of the BA84, this is 10 years in the BA84 as inserted by Section 39 of the BSA 2022.

Previous case law suggests that having served a S36 notice within the required time period (12 months at that time) that the council has an infinite period of time in which to enforce the notice (Bello v London Borough of Lewisham [2003] EWCA Civ 353).

As such it was held that there was no time limit by which a Local Authority must use its powers under Section 36 of the BA84. In the case in question the council enforced the removal of a contravention some 12 years after the service of the original notice.

Any action by the LA will need to be considered within a reasonable time scale, particularly in relation to the relevant date, albeit that the time scales have been extended.

The LA will also consider their obligations in the following sections of the BA84:

• Section 35; Penalty for contravening building regulations or offence of contravening building regulations
• Section 94; Service of documents
• Section 106; Compensation for damage
• Section 114; Action by the court for continuing offences

The council will then make all reasonable attempts to require the owner to remove the contravention themselves.

Should powers of persuasion fail then the council could remove or alter the work and recover those reasonable expenses in doing so, according to Section 36(3) of the BA84. However, the person to whom a Section 36 notice has been served can obtain a report challenging the notice through Section 37 of the BA84.

An appeal against the service of a S36 notice can also be made according to Section 40 of the BA84. An appeal to the court or tribunal is considered by Section 102 of the BA84.

Where an injunction can be considered by the authority on application to the court, there are powers in Section 36(6) of the BA84.

Section 95: inspection of premises and powers of entry

As a part of its normal routine, evidence will normally be gathered through the process of notified inspections for Building Regulations matters.

If a complaint has been made, inspectors will make all reasonable attempts to gain entry to a property to carry out an inspection by invitation from the owner or occupier. However, where the matter is considered to be serious or access is being unreasonably withheld, inspectors have the authority to enter premises (unless they are used wholly or mainly as a private dwelling) where a warrant is required, at reasonable hours. This is not the case if the matter relates to a dangerous building or emergency measures are necessary outside normal working hours.

According to Section 95 BA84, failure to allow entry to an authorised Inspector will result in a warrant being obtained from a Magistrate. The warrant will be used and entry gained (by force if necessary), accompanied by the police.

Building Control Inspectors should carry photographic identification badges. These will be displayed on request.

When gathering evidence and inspecting any allegation of an offence or dangerous and dilapidated building, Building Control have regard to and apply the principles set out in the Home Office's Code of Practice – Powers of Entry (December 2014).

Evidence gathering, witness statements and PACE

Where serious breaches of the building regulations are found, Local Authorities will seek advice from legal teams. They will help advise on matters such as:

• the Criminal Procedure Rules 2020 and witness statements
• gathering technical and procedural evidence
• the use of PACE (S67(9)) to interview and evidence the case
• the disclosure of evidence
• the use of the Code for Crown prosecutors

Register building control approver compliance

The private sector also plays a key role in terms of compliance. While they do not have formal enforcement powers, they identify non-compliance and will seek to resolve these as far as practicably possible. The Registered Building Control Approver may serve a notice of contravention on the client, under Regulation 21 of the Building (Registered Building Control Approvers etc.) (England) Regulations 2024. This may specify the areas of non-compliance.

There are cases where Initial Notices might be reverted to a Local Authority for enforcement action. If a plans certificate has been issued to the Local Authority then that considers the limitations of powers where work has been carried out in accordance with that plan certificate as outlined in Regulation 12 of the Building (Registered Building Control Approvers etc.) (England) Regulations 2024.

If a project has had a final certificate issued to the Local Authority and the Local Authority becomes aware of non-compliance post completion, then there are few powers available under Section 57 of the BA84.

The timescales for a Local Authority to take formal enforcement action, if it has the power to do so because of a cancellation, starts from the date that the Initial Notice ceased to be in force.

Action by a local authority post completion

Clearly once the completion is given by the Local Authority then it is evidence but not conclusive evidence of compliance. So, the Local Authority could investigate any report of a non-compliance in terms of Section 35 (open ended in England) and Section 36 (10 years in England). If not, under Section 36 (6) (open ended in England), default powers as to be able warrant injunction.

Service of building control enforcement notices

All Building Control enforcement notices will, except notices in relation to actions carried out to deal with emergency measures for a dangerous building, by virtue of Section 78 of the BA84, include information regarding rights of appeal and appropriate time limits to make any such appeal. Reference is also made to Section 78(5) & (6) in terms of the correct use of the emergency powers and the consideration of related expenses.

In most cases, notices will be served on the owner as identified by reference to the most up-to-date records held by the Land Registry. Where an owner cannot be identified notices will be served by addressing them to “The Owner(s) and/or Occupier(s)” and posted or affixed to the property in question.

Where the owner is a business, the notice will be addressed to the Company Secretary.

The council will, as far as it is practical to do so, make reasonable enquiries about the name and address of the owner and address any notice accordingly.

Notices will, in most cases, be delivered by Inspectors to the owner’s address if it is within the authority boundary. In some cases, recorded or registered mail will be used. Where notices are delivered by hand these will be confirmed by reference to a certificate of service, signed by the Inspector concerned. Where possible it will also be accompanied by a dated photograph of the place where the notice was addressed (for example the house number and post or letter box).

Dangerous or dilapidated buildings (Sections 77 to 79 of Building Act 1984)

In some instances, there might not be the time available to make enquiries about ownership where the nature of an incident, such as a severely dangerous building occurs. In these cases, simple enquiries about ownership will still be made but, if these come to no avail, Inspectors are authorised to take appropriate action under Section 78 of the BA84 to remove any immediate danger.

Following any action under Section 78 full enquiries will be undertaken as soon as it is practical to do so. A notice will then served on the owner as indicated on the Land Registry records.

Where a danger constitutes (for example a loose balustrade, a non-complaint cladding system, an extended travel distance in an existing or new or extended building), the use of Section 77 of the BA84, by application to the court, can also be considered.

A LA also has powers in regard to Section 79 of the BA84. Where buildings are dilapidated and causing serious detriment to the amenities of the neighbourhood, the LA may by notice require the owner to make good the amenity. A notice requiring work to be carried out under the above sections can be appealed by reference to Section 102 of the BA84.

Recovery of reasonable costs incurred to enforce a notice

Where the council incurs any costs or charges to enforce a notice in default, related to Sections 35B and 35C of the BA84 and Sections 36, and Sections 76, 78 & 79 of the BA84 this will be recovered from the owner or placed as a specific financial charge on the Land Charges register.

Charges not paid in good time may accrue compound interest. It is in the interest of property owners to resolve any outstanding debt(s) made against the property as quickly as possible.

Anyone purchasing a property after a notice has been served, and after costs have been incurred for the enforcement of a notice, may become responsible for the debt and noncompliance.

Debts left unpaid for any length of time may result in the council seeking a County Court Judgment or even seizing the property and selling it at auction, as an enforced sale, under the Law of Property Act 1925. This is to recover all or part of the debt. Some examples of costs are:

• council staff time in dealing with the matter
• contractor charges – labour, materials, plant and equipment
• professional advisor charges
• legal charges
• court costs

Accountability

When delivering this enforcement policy, we will remain independent in our decision making and accountable for our actions. We will strive to provide effective consultation and remain cooperative in our relationships with people when undertaking enforcement.

Alternative formats

If you would like a copy of this policy to be provided in another format (for example large type, braille, or audio recording) please contact your local authority building control (LABC) team.

Complaints

If your concern is with the way in which the council has handled your case, you can complain using the council’s complaints system in the first instance.

If your complaint is that you have suffered injustice as a result of maladministration, you can ask for your case to be investigated by the Local Government Ombudsman. The Ombudsman is independent from the council. Whilst they cannot set aside a decision of the council, they can make recommendations and can, where they find that it is appropriate, recommend that the council pays compensation where they determine that the complaint is justified. The Ombudsman will expect you to have used the council’s own complaints system before they will investigate a complaint.

The Building Safety Regulator also has a complaints procedure relating to: 

• registered building inspectors in England
• registered building control approvers in England
• local authority building control teams in England