Building control enforcement policy

The 1991 guidance note stated the law relating to enforcement at the time, and in particular the time limits controlling prosecutions brought before Magistrates. The guidance is still valid now.

The cases of Hertsmere Borough Council –V– Alan Dunn Building Contractors Ltd [1986] LGR and Torridge District Council –V– Turner [1991] TLR, provide the law in respect to when a contravention has occurred and from when the enforcement clock begins. This is particularly necessary insofar as section 127 of the Magistrates Court Act 1980 (c.43) is concerned, in that:

1. A magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of compliance arose.

This rule is equally applicable to any prosecution or action being considered under other parts of the legislation that Building Control deals with, for example section 81 of the Building Act 1984 (Demolition).

Accordingly to pursue a financial penalty, under any section of the Acts – except section 35A of the Building Act (see below) – the action must be laid within 6 months from when the alleged offence occurred.

Where the solution is to remove a contravention then the specified time limit will also run from when the contravention occurred. As such, to remove a Building Regulation contravention, by way of the service of an enforcement notice by the application of section 36 of the Building Act, the 12-month time limit to take action will begin at the time the contravention occurred - not when the contravention was brought to Building Controls attention.

In the following examples (the list is not exhaustive) the date when the alleged offence was committed is easily definable:-

(a) Failure to deposit plans or a building notice – the 6 months time limit begins to run from the time the work commenced.

(b) Failure to provide a notice about certain stages of work – the 6 months time limit begins from the date that the notice should have been received and after the work involved has been carried out.

(c) Failure to provide a notice about the demolition of a building – the 6 months time limit begins from the date that the work commenced.
In other cases – except those to which section 35A of the Building Act 1984 applies – evidence must be laid, to begin proceedings, within 6 months of the work being completed.

The date of completion of the work can sometimes be difficult to determine, but if the Council is aware that contraventions have existed for more than 6 months, or there is sufficient doubt about how long the work has been underway, then prosecutions for a fine are unlikely to succeed.

It is also worth noting that case law directs that time limits for proceedings commence when a part of the building, which is in contravention, has been completed – not necessarily when all the work has been completed.

For example a staircase in an office block that is installed at too steep an angle. The staircase may be structurally complete before the rest of the building work; however, the alleged offence time limit begins at the time of the completion of the staircase – not upon the completion of all the building work.

The time limits mentioned above have been modified with respect to section 35 of the Building Act 1984, which was amended by section 13 of the Climate Change and Sustainable Energy Act 2006 and introduced section 35A – in particular:

(1) Despite anything in section 127(1) of the magistrates' courts act 1980 (c. 43), An information relating to a relevant offence may be tried by a magistrates' court if it is laid at any time.

(a) within the period of two years beginning with the day on which the offence was committed, and

(b) within the period of six months beginning with the relevant date.

(4) In subsection (1)(b) above, “the relevant date” means the date on which evidence sufficient to justify the proceedings comes to the knowledge of the person commencing the proceedings.

This amendment became effective on 21 August 2006. However, it was unable to be applied until a designating order was made to identify which regulations would be considered to be a relevant offence.

On 10 March 2008 amendment regulations (S.I. 2008/671) were made and then laid before Parliament on 13 March 2008. These amendments inserted a new regulation 22A into the Building Regulations which effectively designated regulations 4 and 6(e) – so far as Part L was concerned – and regulations 4A, 4B, 17C and 17D(f) to allow section 35A of the Building Act to be applied.

However, regulation 22A only came into force on 6 April 2008 and was not able to be applied retrospectively.

There was concern that the application of these longer time limits solely to energy performance contraventions was uneven and, following a consultation process, it was considered that similar time limits should be applied to all the regulations.

The mechanism for extending the prosecutions time limits, to all provisions of the Building Regulations, was provided for in the Housing and Regeneration Bill. This became law on 22 July 2008, with the publication of the Housing and Regeneration Act 2008 (c17) (H&RA08).

Within the H&RA08 section 317 amended section 35A of the Building Act to allow any contravention of Building Regulations to enjoy the same time limit freedoms as those introduced for energy conservation offences.

However, section 317 of the H&RA08 did not come into force automatically and was - by virtue of section 325 - to be introduced on such a day appointed by the Secretary of State.

On 9 September 2008, in a circular letter (CI/43/19/1) to all Building Control Bodies throughout England and Wales, the Secretary of State confirmed – thereby appointing – the date when section 317 of the H&RA08 was to come into force – this being 22 September 2008.
Again the application of section 317, and therefore section 35A, is not retrospective and can only be applied to any contraventions – including energy efficiency regulations covered by regulation 22A – that occurred on or after 22 September 2008.

To assist in understanding the impact of these, a time table was provided by government.

It should be noted that Regulation 22A is, by virtue of section 317 H&RA08 and section 35A BA84, unnecessary after 22 Sept 2010 - after which time all Building Regulation contraventions were able to be handled under section 35A BA84.