Building Regulations Conveyancing

When is Building Regulations Approval Required?

According to section 1 of the Building Act 1984, any work which involves the design and construction of buildings (which includes extensions and alterations to an existing building), the demolition of buildings or services, fittings and equipment provided in or in connection with buildings can be subject to building regulations. 

The purpose of the building regulations are as follows:- 

• securing the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings,
• furthering the conservation of fuel and power
• preventing waste, undue consumption, misuse or contamination of water,
• furthering the protection or enhancement of the environment,
• facilitating sustainable development,
• or furthering the prevention or detection of crime

In terms of residential conveyancing, any work of a structural nature (such as the removal of a chimney breast, the removal of a load bearing wall (as opposed to a partition wall), repairs to or replacement of a roof, extensions, some conservatories etc) would require building regulations approval, as would replacement windows, gas and electrical installations replacement hot water tanks etc. 

Exemption from Building Regulations

There are certain works which are exempt from building regulations. These exemptions are set out in full in Schedule 2 of the Building Regulations 2000 but broadly speaking a ground floor extension or detached building (including a conservatory) which does not contain sleeping quarters, has a floor area of less than 30m2 and does not involve any plumbing, electrical, gas or oil installations will be exemptfrom building regulations. In the case of an extension or conservatory, if an existing external door has been removed (even if a new door has been added) then it will not be exempt from building regulations and in the case of a conservatory which is fully or partly glazed a FENSA certificate will be required (see later in this section). 

Obtaining Building Regulations Approval

The process of obtaining building regulations approval has two stages. First, plans should be submitted to the the local authority's building control department for approval. If plans approval is given, or if no objection is made to the plans within a given time period, and if the work is carried out in accordance with the plans, then according to the law no further need be taken. 

It is important however to be able to demonstrate to a future purchaser that the work was carried out properly and to that end the second stage of the building regulations approval process is to obtain a building regulations completion certificate. This is a certificate given by the local authority's building inspector which confirms that the work complies with building regulations. Depending on the scale of the work the inspector may need to visit the site several times at several stages, for example if a new house is being built he will want to see the foundations, the drains etc as well as the finished building. 

Breach of Building Regulations - Enforcement Action (Section 36 Notice)

If the local authority discovers that some work has been carried out in breach of the building regulations then they may serve a Secton 36 Notice (so called because the power to serve the notice is granted by section 36 of the Building Act 1984). If a section 36 notice is served the owner of the land must either remove the offending structure or else carry out such works as are necessary to comply with building regulations. The local authority may only serve a Section 36 Notice within 12 months of the work being carried out. If they wish to take action after 12 months then they must apply to the court for an injunction which if granted will prevent the land, or that part affected by the offending works, from being used.

Replacement Glazing

As of 1st April 2002 any new or replacement glazing is subject to building regulations and requires approval. To simplify matters a scheme has been set up known as the Fenestration Self Assessment Scheme (FENSA). If the installer is FENSA registered he may issue a FENSA certificate in lieu of a building regulations completion certificate. He must also notify the building control department at the local authority of the work. If the installer is not FENSA registered then the work must be inspected by building control and a completion certificate obtained.

Installation of Gas, Oil or Solid Fuel Burning Appliances

Any installation of a fuel burning appliance must be done by a CORGI (gas), OFTAL, NAPIT or BESCAL (oil) or HETAS, NAPIT, APHCCL or BESCAL (solid fuel) registered engineer who must provide a certificate for his work, otherwise a building regulations completion certificate is needed. 

Electrical Work

Since 1st January 2005 electrical work even some (though by no means all) relatively minor work, particularly in a kitchen or bathroom, must be carried out by a qualified electrician (who must be registered with an organisation such as NICEIC, NAPIT, ECA, ELECSA and others), who must issue a Part P (part P of the Building Regulations 2000 relate to electrical safety) certificate. In the absence of a Part P certificate a building regulations completion certificate is required.

NHBC

When a new property is built, particularly if it is part of a large development, it may well be certified by NHBC (National House Builders Council). We will discuss the scheme in more detail in another chapter but the reason for mentioning it here is that the NHBC inspector may be appointed by building control as an Approved Inspector which means he is able to certify that the house complies with building regulations. If the NHBC officer has acted as an approved inspector then there will be an endorsement to that effect in the left hand margin of the NHBC Insurance Certificate. Otherwise a building regulations completion certificate is still required.

Remedies Where Work Has Been Carried Out Without Building Regulations Approval

Time Limit on Enforcement Action

The local authority is only entitled to serve a Section 36 Notice (see above) within 12 months of the offending work being carried out. After that time they may still apply to the court for an injunction which if granted would prevent the property from being used. So far this legislation has never been tested, that is to say that no local authority has has actually applied for an injunction, which demonstrates that it is somewhat unlikely that action will be taken after 12 months has expired. If an application for an injunction was made, the court would have to consider whether it would be in the public interest to grant it. Presumably therefore an injunction would not be granted unless the breach of building regulations represented a danger to public safety. It seems unlikely that the court would grant an injunction in the case of a small extension or conservatory, or for replacement glazing, however it is possible that the construction of a building, particulary an apartment block, may represent a danger. It should be noted that a injunction can be granted whether or not building regulations approval was obtained for the work. Despite the fact that there is no time limit on the local authority's right to apply for an injunction, it is generally accepted that if 10 years or more have passed since the work was carried out then there is no serious risk of action fro breach of building regulations being taken.

Retrospective Building Regulations Approval

If the work which should have been passed by building control (or self-certified if applicable) has been carried out in the past 12 months, or if you are not satisfied that there is no risk of an injunction, then you may ask the seller to apply for retrospective approval building regulations approval. This will involve the building control department inspecting the work and, if they are satisfied, issuing a regularisation certificate. There is of course a risk that the work will not comply with the regulations, in which case a section 36 notice may be issued. It is worth considering that depending on the nature of the work the inspection process may be quite complicated, for example if the work is the construction of a house and the foundations were not inspected when laid, to do so once the house is complete could be expensive and time consuming

Lack of Building Regulations Indemnity Insurance

As an alternative to obtaining retrospective building regulations approval, indemnity insurance may instead be obtained. This is an insurance policy where the premium is paid just once and would cover the purchaser and mortgage lender against any financial losses suffered should a section 36 notice be served. Cover is generally only available in the following circumstances:- 

• The work was completed at least 12 months prior to the inception of the policy (or 4 years if cover is required for the construction of the property)
• No application for approval has been made, whether refused or pending, and neither buyer or seller are aware of local authority having been put on notice that the works have been carried out
• The property must have been used as a residential dwelling for at least 12 months prior to the inception of the property and must continue to be so used
• No notice, whether formal or informal, of impending enforcement action must have been received by the seller or served to the seller's knowledge
• A survey or valuation report must have been carried out and must not make any adverse comments in respect of the work to be insured

An indemnity policy is usually paid for by the seller, the rationale being that the lack of building regulations approval represents a defect which the buyer could not have been aware of, and therefore could not have taken into account when deciding how much to offer for the property, when his offer was made. The advantages of indemnity insurance over a retrospective building regulations approval application are that it is much quicker (it can often be arranged online in minutes), often cheaper and it avoids alerting the local authority to the breach of building regulations and causing a section 36 notice to be served where the authority might otherwise never have known about the work. The disadvantage of course is that the risk of enforcement action still remains.

If indemnity insurance is obtained it should pointed out to the purchaser that they must not alert the local authority to the existence of the breach of building regulations in future, nor must they change the use of the property, nor reveal the existence of the policy to anyone other than a future purchaser or the solicitor acting for them in a sale or remortgage, otherwise the indemnity policy would be invalidated.