Building Regulations: consequences of overlooking responsibilities

24 April 2017

Tony Defries clarifies what compliance with the Building Regulations means – and the consequences of overlooking your responsibilities

There seems to be a general misconception that possession of a Building Regulations Completion Certificate confirms that works are compliant. This is often not so.

While building control is important, it is not a quality assurance process that identifies and remedies all deficiencies. The certificate simply confirms that the approved inspector or building control officer has, using reasonable skill and care, inspected the building and as far as they are reasonably able certified that the works comply with the regulations.

Unlimited fines

Holding a certificate does not put the responsible party beyond the regulations’ reach. If non-compliant features are found after the works are completed, the local authority has a duty to enforce the regulations under section 35 and 35A of the Building Act 1984 for up to two years. When no corrective action is taken, it is able to seek unlimited fines.

If the works have not been completed in line with the regulations but certified complete and compliant, the local authority can take the following steps:

• For the first 12 months, it may serve an enforcement notice on the contractor and take legal action. In the first instance, this is usually done informally against the main contractor, but litigation may be pursued if necessary.
• From the end of the first year up the end of the second, if the owner does not comply with the notice then the authority can undertake the work itself and recover all reasonable costs.
• Once two years have elapsed since completion, the non-compliances are deemed unenforceable under the regulations. Deficiencies then need to be considered under different legislation, such as the Regulatory Reform Fire Safety Order 2005, health and safety legislation including the Health and Safety at Work etc. Act 1974, the Workplace Regulations, and legislation on houses in multiple occupation. Applying the regulations in such cases is challenging.

Who is responsible?

The responsibility to verify that the design and construction accords with the Building Regulations remains with the designers, material suppliers, main contractor and subcontractors. How it is actually apportioned depends on the form of contract and appointment documentation. However, the responsible parties still tend rely on the officer or inspector to identify non-compliance issues but then fail to fulfil their function adequately by ensuring compliance.

Figure 1: Foam sealant in plasterboard and unsealed holes in fire-rated walls

Non-compliance with the Building Regulations can have significant health and safety implications for building users and the cost of remedial works can be significant, potentially causing material delays to the sale or letting of a building.

Case law since Anns v Merton London Borough Council [1978] AC 728 substantially exonerates the officer or inspector of liability, and has been tested more recently in the European Court of Human Rights. However, the failure of the responsible consultants and contractors to fulfil their duties exposes them to the risk of claims of negligence.

From my recent work, clear examples of non-compliance include the following:

• sealant in plasterboard and unsealed holes in fire-rated walls (see image 1)
• unfixed fire-rated collar around soil pipe, not sealed to wall (see image 2)
• missing fire stopping to movement joints between a car park and flats above to maintain two-hour fire compartment
• missing and incomplete fire protection to fire-rated service risers and partitions in offices and student accommodation to plasterboard construction
• incorrect use of intumescent acrylic foam to joint sealant in plasterboard and around pipework in fire-rated shafts and partitions; most intumescent foam has only been tested in solid masonry or concrete walls and not other forms of construction, which has the potential to become a significant problem
• incorrectly installed fire collars to pipework penetrations through fire-rated shafts or service risers in student accommodation and offices – use of fire-rated collars is often not understood during installation bb inadequate end bearing of long-span steel beams on to concrete pad stone, contrary to structural engineer’s design.

Figure 2: Incorrectly installed fire-rated collar around soil pipe

To summarise, we must ourselves ask whether the buildings we are inspecting comply with the regulations and not rely on others to do so. Neither should we accept that a building is compliant simply because of a completion certificate.

Tony Defries is Director, Building and Project Consultancy at Savills

Further information

• Related competencies include Design and specification, Legal/regulatory compliance
• This feature is taken from the RICS Building surveying journal (March/April 2017)