Transport and the Environment Committee, 06 Nov 2002

Meeting date: Wednesday, November 6, 2002

Official Report 260KB pdf

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Building (Scotland) Bill: Stage 1

We have changed the agenda slightly. We will now proceed to agenda item 4, which is stage 1 consideration of the Building (Scotland) Bill. We have not yet considered item 2, but we will do so after item 4.

I welcome the first panel of witnesses. Heather Fisken is from the Disability Rights Commission, Glyn Evans is from the Fire Protection Association and Trisha McAuley is from the Scottish Consumer Council. I understand that all three witnesses wish to make an opening statement. I ask them to keep those statements as concise as possible.

Good morning. We welcome the opportunity to submit written evidence and to speak to the committee. Our approach to the bill is not born of expertise in building control systems or in how buildings are designed—we do not possess such expertise. Instead, we have considered what we think will be the impact of the proposals on disabled people in Scotland.

There are an estimated 800,000 disabled people in Scotland, which is approximately one in seven of the population. Such people may not be able to use buildings on an equal basis with the rest of society. The services or facilities in buildings are not accessible to them. It is not just the bricks and mortar that are important—what goes on in buildings is important, too.

When we talk about buildings and disabled people, a common presumption is that we are talking only about people with mobility impairments, but that is not the case. People with sensory impairments, people with learning difficulties and people with what might be called hidden disabilities do not have the same access to the built environment and services. They may have fatigue or epilepsy, for example. People with mobility disabilities are not the only people who are affected.

Such people miss out on essential services. Obviously, they miss out on leisure services, but they also miss out on health, education and legal services and on participation in civic activities and the political process. Recently, research was published on the accessibility of polling stations. Disappointingly, the research found that many polling stations are not fully accessible. People are being denied participation in the democratic process.

We have considered the duty that people have to provide services under the Disability Discrimination Act 1995. From 2004, if a physical feature prevents a disabled person from accessing a service equally, that feature will have to be removed or altered, or a reasonable alternative to the service will have to be provided. It is important that builders and developers realise that if they build buildings that are not accessible, nobody will want them after 2004. A service provider who leases or buys a building will be liable to prosecution under the act if they do not make their services accessible.

I want to discuss the contents of the bill. We understand why the system is being revised. It will be brought up to date and modernised and account will be taken of European legislation. We hope that in the end it cultivates flexibility and innovation, because everyone, not just disabled people, likes good and interesting design. That benefits everyone in society. We hope that it will lead quickly to new solutions to access problems for disabled people and that it will bring about real change.

We have issues with some parts of the bill. Until now, the technical standards, which have mandatory status, have provided a level of access on which disabled people have depended. The bill will revoke that mandatory status and replace it with guidance. We understand why that is happening, but we are all disappointed that that is the solution and that it was felt necessary to do that. Therefore, we have examined other parts of the bill that we hope will strengthen the end-product in relation to access and usability for disabled people.

We have examined functional standards and the convenience standard, in relation to section 1. We understand that that is the language of the Building (Scotland) Act 1959, but we think that the bill is a good opportunity to modernise the language. The standard of accessibility and usability for disabled people rests on the word "convenience". The position is implied in the policy memorandum but we would prefer to see that language in the body of the bill. We would also like to see accessibility and usability explicitly detailed in schedule 1.

On the subject of building responsibilities, we hope that verifiers and approved certifiers of construction and design will be qualified and competent in equal opportunities and that their registration and continued accreditation take account of that.

On consultation and the make-up of the building standards advisory committee, our stakeholders—disabled people—are keen to participate in creating a good building system that benefits everybody, especially one that takes away the barriers that they have faced historically. They will appreciate it if future consultation on regulations and guidance takes account of disabled people's views, if consultation is accessible to them and if the membership of the BSAC takes account of disabled people's accessibility and usability needs.

Finally, as I said in the written submission, when we spoke to people at the Dundee seminar which the Disability Rights Commission organised on behalf of the bill team, we asked them what they would look for in a building bill. They replied by listing peace of mind, physical and emotional safety, reliability and equality of opportunity.

Convener, may I clarify whether you want me to make an opening statement or go through our evidence?

An introductory statement will be fine.

I represent the Fire Protection Association, which is a non-profit-making organisation. It is a company limited by guarantee. Its roots are in the British insurance industry and it was one of a triumvirate of groups that consisted of the Association of British Insurers, the Fire Protection Association and the Loss Prevention Council. The FPA has moved away from its insurance roots and is now very much a fire community association. It has a wide-ranging advisory council, whose work stretches across the United Kingdom and many disciplines, and we welcome the opportunity to be here today to present evidence. We thank the committee for that.

We welcome the bill's general principles, which seek to modernise the system and make it flexible and responsive to consumers while ensuring that standards are in place and that consumers are protected.

As our submission states, the focus of our concern is the regulation of the construction industry. We work with the industry to improve self-regulation. The bill's approach to the national accreditation of constructors is an opportunity to do something about cowboy builders, who are the most common cause of complaints in Scotland and the UK. Last year, 110,000 people in the UK complained to trading standards departments about home improvements, repairs and maintenance, construction and double-glazing. That is just the tip of the iceberg. The problem is a huge one for consumers and the bill is an opportunity to do something about it.

The contents of the policy memorandum have not been brought to life in the bill. The bill is fragmented and process driven. We fear that lists of builders will end up gathering dust on shelves, while consumers continue to use builders who offer lower standards of service and less protection. Our submission contains some suggestions that might help and I am happy to elaborate on them.

We will begin with general questions that are aimed at all three panellists, after which we will move to questions that are aimed at specific organisations.

Some of the witnesses have mentioned ways in which the bill might be improved. In as much as they have not already done so, I ask the witnesses to outline briefly the changes that their organisations want and to explain the reasons behind those proposals.

I return to what I said about the processes in the bill. For us, they remain just that—a set of processes, which appear fragmented. The bill does not make it clear how the constituent parts will work together to secure the best outcome for consumers. The focus on process restricts the bill to addressing technical competencies in isolation from other key components of an effective framework, such as industry professionalism or consumer awareness.

For example, if the list of approved certifiers of construction—which we generally support—focuses only on technical merit, it has the potential to mislead consumers. If I want to build a house extension and I know that there is a national list of approved certifiers of construction, I will consult that list because we are told not to use cowboys. I might then hire a builder who has been proven to be technically competent and who can build a good extension that conforms to building standards. However, the builder might use unfair contract terms, such as asking me to pay up front, or his business could be financially insolvent and go down the tubes. Where would that leave me? I used a nationally accredited constructor, but technical competency is only part of the equation. Consumer awareness is another point. If people do not know about the lists, the system will fail.

I have read the evidence from previous witnesses and today's written evidence. Other bodies seem to be concerned about the lack of a joined-up approach. The SCC thinks that what is missing is an explicit reference to a central body in the bill. Such a body, which would join everything up and make the system work effectively, is mentioned in the policy memorandum. We want more about its roles and functions to be in the bill.

Our primary concern is the overlap with the existing fire safety enforcement regime in Scotland. Because the system is moving from a mandatory system to a functional system, in which the technical standards are guidance that people can adopt or not as they see fit, there will, in effect, be no consultation with fire authorities. It is important that fire safety measures are built in at the construction stage because once the building is completed, it is far too late to ask for additional fire doors or staircases or for a fire alarm system to be added to the building, as the owner would have to hack off good plasterwork and so on. Under the new system, the fire authorities will be consulted only if there is a variation from the technical standards. At the moment, the system that Scotland has works well. We are moving to a system that is closely aligned to that in England in Wales, where there is a statutory consultation process that involves the fire authorities, the local authority, the building authority and a private approved inspector, if one is involved. In the bill, there is no statutory right of consultation with the fire authorities. Of course, that could be dealt with in secondary legislation: the building regulations could contain a requirement for the verifier to consult the fire authority.

Another concern is the effect of the approved certifier, who has considerable powers under the proposals. We can detect no requirement in the bill for that approved certifier to consult the fire authority—although, of course, that could also be dealt with in secondary legislation. As many of the decisions on fire safety in buildings are taken by fire safety engineers rather than through the mandatory standards, there must be careful consultation between the person who proposes the approach to fire safety and the fire authority, because, in Scotland, once the building is completed, the fire authority has responsibility for it under the Fire Precautions Act 1971 and the Fire Precautions (Workplace) Regulations 1997. Those two pieces of legislation are not particularly compatible. One is UK legislation and one is EU legislation that is designed to satisfy the framework and workplace directives.

The European legislation poses a problem. The bill gives the Scottish ministers the power to produce a continuing requirement. Under EU legislation that requires fire safety provisions in the workplace, the employer has responsibility, through a risk assessment, for providing fire safety arrangements in a building. Therefore, were Scotland to follow too closely the technical standards route, there is a possibility that people would end up not complying with the EU framework and workplace directives from which the Fire Precautions (Workplace) Regulations 1997 flow.

In England and Wales, Westminster is currently consulting on a completely new fire safety regime. At the moment, there are no such proposals in Scotland, and people will be left with the system that I have outlined, which is not particularly compatible.

On guidance documents, there has to be a procedure for how the verifier and fire authority consult each other and what powers the fire authority has. Unfortunately, consultation can mean that people are consulted, they give their views and they are ignored. We take the view that members may need to consider making an authority an appellant under the bill. Then, if a fire authority feels that its views have not been taken into account, it could appeal against the granting of a building warrant.

The power to apply building standards retrospectively is also offered to Scottish ministers. Although we can understand the need for that, it may overlap with the powers that fire authorities already have in Scotland. Were ministers minded to do so, they could double-bank the requirements. That could also lead to conflict between European law, through the 1997 regulations, and the technical standards.

We very much welcome the creation of the building standards advisory committee. It is eminently sensible. When ministers come to consider the constitution and membership of that committee, we urge them to consider including representatives of the fire community—fire authorities and other bodies represented in the community, including insurance interests.

That concludes my evidence. I am more than happy to take questions.

Our main bone of contention is the fact that the technical standards may no longer be mandatory. We feel that the impact of that could be negative, unless, through other facets of the bill, we can strengthen the application and observance of equalities and so strengthen accessibility and usability.

As I said, we would like the definition of convenience in section 1 to be expanded to include explicit reference to accessibility and usability for disabled people. That is implied in the policy memorandum and in the explanatory notes, but the word "access" could be taken to mean access to entrances. Given what we feel disabled people are losing through the bill, we feel that we must emphasise that elsewhere, wherever we can. I cannot emphasise that strongly enough. It is a good opportunity to modernise the language of the law. If we are going for a modern system, let us modernise the language as well.

The bill mentions convenience. If a building is not accessible to disabled people, it is a lot more than inconvenient. They may not be able to access the service at all or they may have to travel to another location to do so, and they may not have the opportunity or financial means to travel. Our research shows that many disabled people live in households with an income of less than £10,000 per annum. There should be more accessible transport to enable them to travel to another location to access services, goods or facilities elsewhere. People who provide services will lose out on business and will fail in their duty to meet the DDA regulations.

Some of our suggestions for the bill relate directly to the regulations that will come later. When regulations are introduced on the functions and duties of verifiers and approved certifiers, they should take account of equal opportunities. We realise that local authority verifiers and enforcement bodies are already covered by schedule 5 to the Scotland Act 1998. It will be more difficult to cover independent people and non-public bodies, but it would be wonderful if the regulations could take account of equal opportunities, especially when they come to produce information or reports for Scottish ministers. That would help such bodies to focus on access and equality for disabled people. They will have to think about it. It would also mean that Scottish ministers have the information to ensure that the guidance and the functional standards are applied consistently throughout Scotland and across building types.

Ministers will also have the information to ensure that people are properly approved and have the right knowledge. Gas installers have certain standards and are accredited. Much more recently a register of accessibility consultants was set up. It is based in London and there are not very many people on it at the moment, but it is growing.

We understand that other regulations will come later and that there will be a relaxation of building regulations. We urge people to think about potential future users and about changes of building use, which happens quite a lot now. We want people to think about that because it is much harder and more expensive to convert a building once it is built than it is to design it to be accessible.

We would like the building standards advisory committee and the consultation process to take account of equal opportunities. We understand that the bill might not be the right vehicle, but if we can get equal opportunities, accessibility and usability extended within the bill, the regulations that follow will be in a better position to take account of those issues.

Fiona McLeod has a supplementary. Once she has asked that, we will move straight to her questions to the Disability Rights Commission.

Robin Harper is going to ask questions of the Disability Rights Commission and I might be pre-empting his initial question, but I was interested in the fact that each of the witnesses talked about the move from mandatory technical standards to technical guidance. Why does it concern you that we are moving away from mandatory standards to guidance? Why do you think that the Executive has decided to take that route?

The difference between mandatory and non-mandatory guidance is that the mandatory system that is operating at the moment is well known. If someone wants a building warrant, they have to comply with the technical standards. If someone wants to deviate from those technical standards, they apply for a relaxation. At that point, the fire authority would become involved.

The move towards non-mandatory guidance means that all kinds of guidance will be able to be fed into the system because there will be only a broad functional requirement that the building materials will not spread fire. We have had such a problem in England and Wales. I am just using that as a demonstration. The approved certifier or verifier will have to use the submission that is put before them to determine whether that functional requirement is achieved. He or she could be presented with a wide variety of guidance.

As the bill stands, in Scotland there would be no consultation with the fire authority at that stage. That will leave a gap. Potentially, a fire authority could inspect a completed building that might pose them problems. That is the fundamental problem. The experience that we have gone through in England and Wales makes us concerned that there should be a clear, concise and statutorily guaranteed consultation process.

The fact that the technical standards in Scotland are mandatory and prescriptive provides a level of access, although it is not necessarily a particularly high level. The standards include provisions about the gradient of ramps, for example. Unfortunately the standards are applied inconsistently. We have been advised that my colleagues in London look jealously on the mandatory status of technical standards in Scotland, because the approved document in England and Wales, which is the equivalent of the technical standards, has guidance status. I have been informed that it is expected that when the technical standards become guidance, people will follow the guidance and refer to it, as is the case in England and Wales. That seems to go against the idea of innovation, but there you go.

The standards are applied inconsistently, so we hope that the regulation of verifiers and certifiers means that they will be able to enforce the guidance and lead us towards a better solution and innovation that will provide access. We understand why the change is happening, but for us—disabled people—it is a great loss that the technical standards are to lose mandatory status. We need to strengthen the bill elsewhere.

We do not have a view on whether technical standards should be mandatory. We do not feel qualified to comment on that.

My questions are for Heather Fisken. You have made your opinions on the move from mandatory standards to technical guidance clear, so I do not need to ask further about that, but it would be useful if you were to comment on the part that is played by private sector verifiers. Could they be relied upon to serve the public interest, particularly in relation to disabled access to buildings?

That is, in a sense, difficult to visualise. However, I go back to my earlier point: when regulations are developed for certifiers or independent verifiers it will be important that they are, through being competent and qualified, charged with taking account of accessibility and usability. They should also perhaps be required to report on how they are doing things and why they are doing them. We would look for certifiers to present what is known as a statement of access that lays out how access will be provided if a design is particularly innovative and it is hard for people to see how that would happen.

It is difficult to give a yes-or-no answer to Robin Harper's question. I will say that we will welcome change, because the current system has attracted criticism from disabled people on access panels: the change could be positive. The answer to the question will depend on how the change is achieved, what regulation is placed on independent verifiers and how they are monitored by the new body the Executive may set up in three or four years' time.

Thank you for that answer. Would you press for the mandatory technical standards to be kept?

We cannot say yes in response to that question, because technical guidance is the solution that the Executive has presented in response to the European directives. We are disappointed about the loss of mandatory status, but provided that the bill will provide for and ensure access and usability, we cannot say that we want that to be done in a particular way. We are more interested in the end result.

So, your observations on private sector verifiers are extremely important.

Heather Fisken indicated agreement.

Should the bill place a duty on local authorities to make building standards registers and standards documents available in accessible formats—for example, in Braille?

Yes—absolutely. Access panels are an important source of information for building control officers in some local authorities, although not all local authorities support local access panels. It is important that disabled people have access to that information, so that they can apply it themselves.

We make the point in our written submission that developers and so on have a channel of communication with verifiers, because they deal with verifiers when they apply for building warrants. However, disabled people and other members of the public do not have that channel of communication through which to say, "Excuse me; I think there's been a breach." We would welcome something like that from local authorities as enforcement agencies. Under the Disability Discrimination Act 1995, a disabled person who has been discriminated against can come to the DRC and we can mount a case against a service provider. However, if a building is in breach of the convenience function or other standards, there is no way for the public to report that or to ask the enforcement authority to take action.

Fiona McLeod has questions specifically for the Fire Protection Association.

The committee has heard evidence that the self-certification of design and construction could compromise the structural safety of major buildings. Do you think that it could also have implications for fire safety?

The issue revolves around the degree of control that exists over the certification process, which is the absolute bottom line. The degree of control and consultation that the bill requires between the building control authority—"the verifier", as it is termed in the bill—the fire authority and the approved certifier gives a lot of power. However, there does not seem to be much opportunity to challenge what is being certified. The way in which to deal with the problem is to ensure that private certification is controlled and that there exists the possibility of questioning it, which will ensure that what is being proposed is the best fit for a certain building.

I hesitate to say it, but that is the way in which the system has had to develop in England and Wales. Under the building regulations in England and Wales, there have been continual improvements to the approved inspector regulations so that, in such circumstances, those bodies or persons are involved in consultation with the fire authority. There is a system of checks and balances.

Should the bill state that the fire authorities be statutory consultees?

Yes. Historically, Scotland has led England and Wales. Scotland was the first country in the UK to include in its building control procedure a requirement for fire safety provisions, such as means of escape, fire alarms and the provision of access and facilities for the fire service. England and Wales trailed Scotland by 10 years and did not make such statutory provision on fire safety until about 1973. We are aware of how the fire safety situation has developed in Scotland.

Should provision for fire authorities to be statutory consultees be included in the bill or in the guidance to the bill?

Our experience is that such provision should be statutory. However, the provision can be put into the bill or into secondary legislation in the form of regulations. In relation to the Building Act 1984, the provision for fire authorities' being statutory consultees is included the bill, as it is in the regulations. How that provision is dealt with in Scotland is a matter for the Scottish Parliament. On balance, we would prefer the provision to be in the primary legislation so that it is eminently clear to everybody that fire authorities should be statutory consultees.

If fire authorities were statutory consultees, would that also ensure that all fire safety issues would be taken care of through the proposed private verifiers?

That is essential, because Scottish ministers will ultimately have the power to determine who the verifiers will be, whether they be private verifiers or verifiers from an existing local authority building control department. In any case, a verifier should be required to consult the fire authority before granting a building warrant. That would ultimately save money as well as enhance the fire safety requirements in buildings, which would be built in, rather than strapped on later at a cost.

My question is for the Scottish Consumer Council—the SCC. Will the introduction of private sector verifiers be in the interests of consumers?

Our response must follow from what Heather Fisken and Glyn Evans said. The keys to ensuring that the new system works are quality control, audit and the role of regulation. We have no problem with changing how the verification system works because there are sometimes many delays in building control, and the new system could be more convenient and quicker for consumers. It does not matter whether the verifiers are from the private or the public sector as long as they are transparent and accountable.

That is fine. Is there a role for the Construction Licensing Executive Ltd, in which the SCC is represented, in the appointment and monitoring of approved certifiers?

I can foresee that there would be a role for that body. Our evidence shows that the building industry is working hard to clean up its act. The industry is following best-practice principles, from the consumer perspective. I am the vice-chair of the board of the Construction Licensing Executive and the representative of the Society of Chief Officers of Trading Standards in Scotland is in the chair. We like the bill's policy memorandum's approach to the effect that the Executive should work in partnership with the industry. There is no doubt that if the industry takes the initiative, it will be accountable for its actions. We would welcome that.

However, regulation and the Building Standards Advisory Committee's role will be crucial. The new framework should underpin the self-regulation that is happening through the Construction Licensing Executive. Those organisations must work together, but the role that we envisage for the CLE has an element of independence from the industry although it works in partnership with it. That independence is crucial.

You have expressed concerns about the accessibility of the proposed building standards registers, which are to be maintained by local authorities. How could the bill be improved to ease those concerns?

I think that we address that in our written submission. We go along with what Heather Fisken said. The bill says that

"Building standards registers must be kept open",

which is a rather passive statement. There is a difference between availability and accessibility. It is vital that building standards registers be in accessible formats, that they be held in places to which the public go—such as libraries—and that local authorities have a duty to publicise their existence. There is also the thorny question of fees. I can elaborate on our views on fees, if members wish it. Charges will reduce accessibility.

You may elaborate, but be brief.

As I said, charging to see a register reduces its accessibility. That has a greater effect on those on lower incomes who are less able to pay such charges. In principle, no costs of the new system should be passed on to consumers. However, we realise that local authorities also have resource constraints and although we would prefer in principle that there be no fees, we cannot see why the situation should be any different from, or not fall under the requirements of, the Freedom of Information (Scotland) Act 2002 and the fee structure that goes along with that act.

That brings us to the end of our questions to you. You have a final opportunity to make other points that you have not yet made.

I will make one quick point, which is in paragraph 1 of our submission. I plead that the committee consider defining the term "others"— which is used in section 1(1)(a)—in the interpretation section so that it includes emergency services personnel, in particular firefighters when they are carrying out rescues and firefighting. The bill would then also allow for their safety to be considered by those on whom its provisions fall.

There is a typographical error in paragraph 1 of our submission. It refers to

"Essential Requirement 5 of the EC Construction Products Directive".

That should read "essential requirement 2". I apologise to the committee for that error.

I reiterate that disabled people rely on the building standards and the building control system to provide access. As reported at the end of the Dundee seminar that we held in June for the bill team, disabled people need reliability. They need to know that if they are going to travel somewhere to use a service or buy something, they can access it. That is very important from their perspective.

I thank Heather Fisken, Glyn Evans and Trisha McAuley for their evidence, which will assist in our consideration of the Building (Scotland) Bill.

I will allow the committee a two or three-minute break while we bring the next panel of witnesses to the table.

Meeting suspended.

On resuming—

I welcome our second panel of witnesses on the Building (Scotland) Bill. Bob Christie is from the Convention of Scottish Local Authorities, and Bob Renton and Iain Ross are from the Scottish Association of Chief Building Control Officers. I understand that both organisations wish to make opening statements. I stress that I want those to be brief; we have a tight agenda and we need to make progress and get on to the question-and-answer stage. I invite Bob Christie to make his opening statement.

I thank the committee for the invitation to contribute evidence. COSLA, as the committee knows from our written submission, supports the general principles of the bill. We acknowledge the open consultation process that the Scottish Executive has undertaken. We also acknowledge the professional expertise and practical experience of the Scottish Association of Chief Building Control Officers, who are with us today. They have some reservations about the bill, despite the general principles, and COSLA shares those.

Those reservations fall under two headings. First, the building standards system exists to protect public safety and to encourage sustainability. We believe that it is essential that the system therefore continue to meet the four criteria of being impartial, transparent, accountable and consistent. Impartiality is particularly important and we urge the committee to satisfy itself fully that the bill will meet those criteria.

Our second reservation is that, as with any change to the operation of a local government service, consideration must be given to resource implications. We share the reservations that have been expressed by the Scottish Association of Chief Building Control Officers about the resource implications that will arise specifically from three of the bill's proposals: the duty on local authorities to provide building standards assessments at the request of owners; the duty to comply with a ministerial direction requiring building standards compliance; and the duty to make building standards registers available for public inspection, to which—given the earlier evidence—we may return later. Those are all new duties that will have new resource implications.

I must make it clear that I have no personal or professional expertise or practical experience in this field, so I have little to add to the SACBCO evidence. I do not wish to comment on matters that are outwith my knowledge and so possibly mislead the committee, but it is important that COSLA should be able to advise the committee on matters that concern resourcing of a local government service. I am grateful for the opportunity to give evidence.

My association represents the chief building control officials in the 32 local authorities in Scotland. At this stage, we want to place on record our appreciation of the work of the Scottish Executive's building standards division and of the amount of consultation that has taken place to prepare the bill. The bill as drafted addresses the reality of current building design and construction and it goes a long way towards meeting the shortcomings that have been identified in the present system.

The convener has asked me to brief, which I will be. The bill presents clarity of purpose in a clear and concise manner. It forms a robust base and includes credible enforcement powers. It builds on the experience of practising building standards professionals but—there is always a but—we have some concerns, which we highlighted in our written evidence and that we hope will be brought out later in the debate.

The first group of questions is aimed at all of the panel, so I ask the witnesses to indicate whether they wish to answer. I note Bob Christie's wish to let Iain Ross and Bob Renton deal with technical matters. John Scott will open with some general questions.

Several witnesses have expressed concerns about the fact that the bill will place the duty to apply for building warrants, amendments and completion certificates on building owners, rather than allow an agent to act on their behalf. Does the Scottish Association of Chief Building Control Officers share those concerns?

In practice, we probably do not. The current system, whereby an agent acting on behalf of an owner can in effect fulfil the function of the owner, does not present difficulties. The legal position is that ultimately the owner has the legal responsibility to comply both with the minimum standards and with the procedures. The fact that an agent works on the owner's behalf is not considered to be a problem.

I agree with Bob Renton. It has always been recognised that the bottom line is that the owner carries the final responsibility. I do not see another way of moving from that.

I will clarify one aspect. There has been some debate about the position of tenants who seek authority for alterations through the warrant application process. Our written evidence suggests that much of the doubt about the responsibility of the owner could be clarified if a declaration was made at the stage at which the application for a building warrant was made. The application could clarify the status of the applicant and, if the applicant is not the owner, the application could clarify whether the owner has been advised.

Also, applications could seek a declaration of ownership of the property in question, especially if the application is for an alteration, extension or conversion. It is not unprecedented for a building warrant to be granted to a person who has no legal right to a building, so there are issues attached to that. However, the principle of an agent's acting on behalf of an owner is not considered to represent a problem.

The City of Edinburgh Council's written evidence to the committee argues that building controls should apply to areas such as car parking and footpaths in new housing developments. Does the Scottish Association of Chief Building Control Officers support that proposal?

Absolutely. The requirement for safe access for the fire brigade and for access for the disabled should in effect start from the public road. These days, most of the roads in multiple housing developments and in private mews developments in particular are in private ownership. It is right and proper that building regulations should apply to such provision.

We support fully the suggestion that factors such as flooding and contamination through surface water should come within the remit of building standards.

I want to return to John Scott's initial question, because I am a little confused myself. You say that you do not see a problem with agents applying for building warrants. My understanding is that, under the bill, the requirement to apply for building warrants would be placed on the owner instead of the agent.

That was not our understanding from our discussions with the Scottish Executive. Although the bill specifically mentions the owner, our understanding is that it will not alter the status quo.

When they gave evidence last week, the professional bodies that represent the surveyors, architects and so on were of a different understanding.

If the situation were to change and an agent were not allowed to apply for a warrant, about 75 per cent of the applications that are submitted to Scottish local authorities would have to change their application deposit, because they come under the names of agents who are acting on behalf of an owner. I foresee severe problems, for example with owners not knowing how to make submissions.

It is good that we have clarified the matter. I hope that it is simply a misunderstanding, but there is a clear difference between your view and the view that the professional bodies gave in evidence last week.

Bob Renton and Iain Ross have said that there might not be a problem as long as the application has to state the owner. Perhaps we should feed that suggestion into the bill.

Several previous witnesses have stated that they would like to see a duty placed on owners to make regular inspections of buildings. Would the witnesses support such a proposal and, if so, how could it be made to work?

Our association supports that proposal in principle. After all, recent evidence from the Edinburgh fatal accident inquiry has indicated a lack of commitment from owners to maintaining their own buildings. We like the fact that the bill links defective and dangerous buildings, because a defective building can quickly become a dangerous one.

Since we submitted evidence to the committee, we have discussed the matter again and feel that we would like to investigate the duty placed on individual owners to carry out planned maintenance of their properties in order to avoid defects. However, it is difficult to know how that could be implemented through statute. Perhaps it could be included in the guidance documents that back up the whole system. By including that duty in guidance, we might increase awareness of the problem and allow the monitoring authorities and private individuals to engage in partnership working. That might even include people who own more than one property—for example, those who own tenements—because many problems arise because of landlords rather than private individuals. Problems with rectifying defects in such properties generally result in the need for enforcement action, primarily because individual owners cannot agree among themselves. As a result, no one actually carries out planned maintenance. As I have said, although the principle is important, we are not too sure how it can be implemented through statute, unless it happens through guidance.

Fair enough.

Does your organisation have any concerns about the proposed system for setting fees and charges? If so, how could they be resolved?

It is fair to say that, as we represent local authorities, we have a serious concern. We welcome much in the bill, but it places a considerable load on local authorities. Building assessment will be a huge demand. It replaces letters of comfort and qualifying statements, but could apply more widely than them.

We are interested in the fee structure. The changes to self-certification of design and installation provide the opportunity for a fee scale. Local authorities might not receive the full fee—that would depend on how a developer made his application. That also concerns us.

We are concerned that the bill refers to ministers not permitting local authorities to follow the tradition of vetting their own applications. We appreciate the reasons why that might be a difficulty, such as the need for transparency, but we must be aware of that proposal's significant implications for local authority income.

We will be interested in the fee structure. The association has argued for a considerable time that the building control fee structure has never been fully investigated. On the surface, we as a building control authority deal with building warrants. In reality, we deal with building warrants and dozens of other matters for which we receive no fee. If we are considering the building control system's funding, we must consider it in the wider sphere and not consider only building warrants, because the playing field out there is far bigger, and local authorities do much stuff for which they are not paid but which is paid for from our budgets.

I fully support the statements that have been made. The association has long called for a review of fees and charges. We welcome the Executive's recent initiative of writing to all local authority chief executives to start the review of fees and charges, which was announced after we submitted our written evidence. However, COSLA and building control officers want to be involved in analysing the information that all the local authorities provide and in discussing the setting of new fees and charges. That exercise must be owned by all stakeholders.

My questions are for COSLA. COSLA's written evidence—it was reinforced by your remarks this morning—says that

"only local authorities are able to fulfil"

the criteria of impartiality, transparency, accountability and consistency. Given that, does COSLA support the proposed introduction of private sector verifiers? How do you justify your answer?

That is a good question. We support verification by any organisation that can meet those four criteria. However, we do not give the criteria equal weight. Consistency is perhaps the least important criterion, although it was highlighted in earlier evidence. The system exists for public safety, so impartiality is the most important criterion and accountability is a close second. If the system exists in the public interest, it must be accountable to the public. Local authorities are accountable to the public. It is difficult to identify any other verifier that could hold that accountability and be held to account.

How do you justify your position on consistency? You seem to relegate it to a lesser status.

All four criteria are important. We have said that all four should be met. However, a judgment must be made about their relative importance. For us, consistency does not have the status of the others. However, we acknowledge that the bill provides for greater consistency throughout Scotland. If that can be achieved with the resourcing that is available to local authorities, we will fully support it.

My question is for the building control officers. If we have private verifiers, they will not be accountable in the same way that a local authority is, but how can we ensure that they are accountable individually and professionally?

That is a very difficult question to answer. Essentially, my association accepts that there is an issue around private certifiers. If a level playing field is provided, and if private certifiers meet the same criteria that apply to others, we see no reason why they should not be introduced at some stage. The difficulty lies in making the guidelines and monitoring rigid enough.

Private certifiers have operated in England and Wales for five or six years, and it is felt that there is not enough evidence to show that they are independent, transparent and so on. Until that can be clearly demonstrated, we would have concerns about their introduction in Scotland.

Building control has always been about the health and safety of people in and around buildings. Everything is based on that. The building control profession, and indeed legislators in Scotland, can be proud about the lack of deaths through building failures in Scotland over history. Compared with other countries, we have a tremendous record on that, and we must ensure that it is retained. If it can be demonstrated that private certifiers are independent and transparent, and if restraints and checks can be put in place, their position becomes viable. However, we have to be sure that the checks are there before those certifiers are introduced—that is the bottom line.

You say that not enough evidence has come from England and Wales to show that the private sector verifiers have been impartial, transparent, accountable and consistent, but is there any evidence to show that they have not been those things?

It is probably fair to say that there has been no real in-depth investigation into that. On the basis that we do not have a clear, definitive guide, it would be a leap in the dark to allow private certifiers to work in Scotland at the present time. If someone could produce the necessary statistics or evidence, then there would be a case that they could be introduced immediately. Failing that, there has to be in-depth investigation into how the system is working in England and Wales. To my knowledge, such information is not to hand at this time.

Is there dissatisfaction with how the system is working in England and Wales?

Obviously, I cannot speak for England and Wales, but we do liaise with our colleagues down south. I think—hopefully Bob Renton will agree—that there are some concerns with the system as it operates down south.

Unfortunately, COSLA became aware of individual local authorities' submissions of written evidence only after we had submitted our own written evidence. I am conscious that the City of Edinburgh Council explicitly offered the committee the opportunity to take evidence from Birmingham City Council, Manchester City Council and Sheffield City Council, because of their concerns about the operation of the system in England. I hope that the committee will be able to avail itself of that informed practical evidence of how things have been operating down there.

Is there an audit system built into the system in England and Wales?

I cannot give you a definite answer to that, but I am not sure that there is one covering private certifiers.

The policy memorandum proposes that local authority building control departments should be subject to audit by the central building standards body, the proposed building standards advisory committee, in addition to the work that is already undertaken by the Accounts Commission for Scotland. Do you support that proposal, and can you justify your answer?

We support it 100 per cent. We see no reason why local government building control authorities should not be audited as thoroughly and rigorously as anyone else is. I add the caveat that the bill does not say that private certifiers should be audited. We would consider that, if private certifiers are to be introduced, they should be subject to the same rigorous examination as local authorities. The association has absolutely no problem with the proposal.

That follows on from my question about the English system. I put the same question to Bob Christie of COSLA.

We have to rely on the professional advice of our officers on this matter. If they believe that further auditing is in the public interest, so be it. However, I am conscious of the fact that there should be some opportunity for peer review in that auditing.

There is a relatively new Accounts Commission for Scotland initiative on local government's trading standards function. The commission produced its "Made to measure?" report in recent weeks, and the new system appears to have worked well. It is important that a review or audit of local government services should be informed by other local government experience—perhaps by the experience of another group of local authorities.

Guidance will be issued on the approval of the private verifiers. Given that local authorities will be audited, which you welcome, is it the case that confidence in the verifiers will rest in the guidance on their approval?

As was suggested in earlier evidence, it will very much depend on how the system is controlled and monitored. I will re-emphasise what Iain Ross said. We expect private verifiers to be subject to the same rigours of audit and monitoring that apply to other verifiers.

We argue strongly that a person must have expertise in the building standards system in order to be a verifier of building standards. We made that point in our submission. It is not simply a matter of having expertise in a specific profession or trade; the verifier needs to have expertise in the system. One way of achieving that is to utilise the professional expertise of the building control profession.

We also have a slight concern that the proposed building standards advisory committee is charged with the appointment of verifiers and with monitoring their performance. It has been suggested that the local authority, as the enforcing authority, will also have a role in assessing the competence and performance of private verifiers. We are not sure how that will work in practice.

Our concern is with how the building standards advisory committee will carry out a monitoring role if it is also to operate as a verifier. It would seem that there is a need for two separate bodies: one that is charged with adjudication and monitoring and another with the verification role. There is a debate about how the detail of those arrangements should be rolled out.

To examine the principle of private verification we have to go back to the original aims of the bill, which were to increase innovation and flexibility and the individual's ability to access other forms of verification. Our association does not have a problem with that principle. As Bob Christie and Iain Ross said, we are concerned that there should be correct and robust monitoring of competence. The first test must be a correct assessment of competence. We have a long way to go in the detail that will be required to establish a level of competency that is suitable to meet the criteria that are defined in the principles of the bill.

If all the caveats that you have expressed about the introduction of private verifiers were taken on board in the bill and in regulation, would the introduction of private verifiers drive up building standards?

My gut reaction would be yes and no. I would argue that the building standards standard of excellence is fairly high at the moment. The introduction of private verifiers would certainly put local authorities on their mettle, but I am not sure that private certifiers would deliver a higher standard than the local authorities are delivering at the moment. To be perfectly brutal, if competition is introduced, people have to look over their shoulder to see who is chasing them—they need to ensure that they have got their act together. That said, I defend the local authority building control system and doubt that a private certifier could produce a higher standard.

I am interested in that. I know that you have said already that you cannot comment on England and Wales, but when we heard from the users of building standards, they were pleased that the introduction of the system in England and Wales—I cannot remember what it is called there, but it is similar to the proposed system of private verifiers here—had sped up the process, but thought that it had not driven up standards.

Speed of approval is the aspect on which we find it difficult to defend our overall performance. The standards that have been applied throughout the past 40 years or so through local authority building control without debate have been successful in achieving safe buildings. However, we are aware of the performance levels with regard to speed of approval. I argue strongly that speed should not be the only measure. There must be recognition of the quality of the decision at the end of the day. Anybody can produce a fast approval, but will it be robust? That should not be forgotten. As Iain Ross said, competition is a challenge, but that challenge can be met only by adequate resourcing of local authority functions. We have made that clear.

I reiterate the point that an offer has been tabled to let the committee benefit from three major English local authorities' experience of running a system for some time. As the committee has benefited from users' experience, it is probably only appropriate to gain the benefit of the English local government experience to counterbalance that.

I have taken that point on board. It is unlikely that we will seek to take oral evidence from those local authorities, but we will seek written evidence from them.

This is my last question. I remind Bob Christie of his comments on consistency. Some witnesses have highlighted concerns about inconsistency in decision making between local authorities. Do you acknowledge that that may be a problem and, if so, do you think that the bill will address it?

Yes. I would have thought that any local government officer who said that there was consistency across the spectrum would be lying. There is inconsistency. The Scottish Association of Chief Building Control Officers has worked hard with its member authorities to try to remove some of that inconsistency but, ultimately, the interpretation of a regulation comes down to the individual officer who is looking at the regulation. Given the number of authorities and the number of officers that we have, there will always be inconsistencies, although we are working hard to eliminate them.

The bill will help. The concern about removing mandatory standards was mentioned earlier. We are not so concerned. The building industry is moving on dramatically. There are new innovations every week, and the technical standards are running to catch up. The bill affords the opportunity to allow designers and developers more flexibility in how they submit a design to the building authority for compliance. It is up to the building control authorities—whether private or public—to have enough professionalism to deal with those innovative designs and to get them to match the standards. Saying that something must comply, otherwise it is unacceptable, is not viable in this day and age. We need to say, "This is what we are trying to achieve. There are ways of doing this. This is our suggestion. Do you think that that fits the bill?" It is up to the local authorities, if I may speak for them, to say, "Yes, we think this works. We can accept that."

One of the reasons why consistency is not so important to us is that we recognise—as I am sure the committee does—that different areas have different needs. That recognition is embodied in the bill as well. The example that is given in the explanatory notes is about access for fire engines on islands where one cannot get a fire engine.

Consistency does not really matter, so long as the building standards themselves are being complied with. That is the key point. Recognition that there is legitimate divergence between areas is perhaps quite a good thing, if we consider how the Scottish system has diverged from the English and Welsh systems on energy conservation.

I wish to tease out the difference between consistency and flexibility. You said that you could deal with the change from mandatory technical standards to technical guidelines because it would allow flexibility. Would that apply to everything that you talking about? We have heard from the Fire Protection Association and about disability access. Do you not think that that flexibility may lead to inconsistency and that folk may achieve only the minimum rather than go for the best?

That is a good question, and it touches on something that Bob Renton said. The granting of building control permission is about not speed but quality, and we need a professional service that is able to address such questions. There will be some legislation in tablets of stone for considerations such as means of escape from fire—for example, buildings must have X number of stairs to comply with the standard. How the stairs are designed may vary, and it is up to the professionals to come to a meeting of minds of how that is done. Therefore, although it might seem that there is a conflict, I am not sure whether it is as great as has been suggested.

If I may reflect back, would it be correct to infer from what you are saying that we will gain considerably more from the swings of flexibility by moving to technical guidance than we will lose by abandoning the roundabouts of mandatory standards?

I think that the association would agree with that comment completely.

I have a few specific questions for the building control officers. In your written evidence, you highlight concerns about cowboy builders using exemptions from building control to avoid accepting responsibility for poor workmanship. Will you expand on those concerns and advise us how we should tackle them in the bill?

There is a fundamental anomaly in the current standards whereby buildings are exempted through statute, sometimes simply because of their size. Exempted classes also cover buildings such as nuclear installations. We would argue strongly for the principle that exemptions should apply to a building type only if other equivalent regulations govern its construction. Equally, even if a building is exempt from the need for a warrant, it should not be exempt from the need to comply with building standards. We would want that anomaly to be removed, because it does not make sense to us as practising professionals.

I will give you an example. Someone might want to build an office extension to their house from which to run their own business. If they add an extension of 28 sq m, it will require a building warrant and full compliance with all the building standards. If they decide to erect a detached building of 28 sq m, it will be exempt from the need for a warrant and compliance with building standards. That issue needs to be addressed.

On the specific point about cowboy builders, if the buildings are not controlled, through either the warrant process or the need for compliance with standards, what fallback does an individual owner have against a builder who does shoddy work? There are no standards that he needs to meet. If there were an inherent need to meet a standard of construction under the legislation, the question whether a warrant is needed would almost be a side issue. The fundamental principle would be that buildings must be built to minimum standards, and whoever builds them must meet those standards. That would contribute to the legitimacy of a builder.

The problem of cowboy builders is huge and includes the VAT position. Many fly-by-night builders take cash in hand and pay no VAT, so the individual owner gets a cheaper job. Therefore, building standards cannot control all the problems of cowboy builders, but we would argue that re-examination of the exemptions offers the opportunity to marginalise the activities of such rogue traders.

The other main opportunity that the bill presents arises from the guidance documents, which will form a significant part of the future. If those documents promote the use of competent tradespeople and highlight the consequences of using people who are other than competent, they will contribute to the main aim of having a robust building standards system.

The bill is not only about minimum safety standards; it covers welfare, convenience and the general good of buildings and the building standards system. The wider aims and scope of the bill provide an opportunity to target those elements. I do not necessarily mean that we need to control through building control, but that a general awareness is required.

Will the extensive use of self-certification by design and construction firms lead to problems that are similar to those you mentioned in relation to exemptions?

Self-certification is a double-edged sword. It might be acceptable to say that not all building types need a warrant, but, to reiterate, it is not acceptable to say that not all building types should comply with standards. One option is that approved certifiers of construction and certifiers of design could decide whether particular buildings meet the minimum standards. If that is a legitimate proposal, there should be a statutory requirement for such certification and for the certificate of minimum standards to be submitted to the enforcing local authority to be included in a building standards register.

Might the new Construction Licensing Executive's approved codes of practice help to ensure that that happened? A private certifier would have to follow an approved code of practice or ensure that the builder or designer had followed the approved code of practice.

The principles are correct, but the implementation has a long way to go. I am concerned about licensing systems that are operated by the trade but which are not subject to audits or monitoring. I return to my point about the level of competency that is required for certifiers. The system must concentrate on more than a certifier's specific trade or profession and must take account of all the issues that are associated with building standards, including the competency under the licensing scheme of the builder or tradesperson. We support the principle of licensing schemes, but their detail and robustness is yet to be fully confirmed.

On many issues, we await the guidelines, guidance and regulations. One concern is that we might be fragmenting who does what on which bit of a building. How can we ensure that we end up with an holistic system?

That is a danger. As Bob Renton said, if—as is proposed in the bill—we are to have approved certifiers of design and approved certifiers of building, the register of those certifiers must be robust and must be audited and monitored continually.

I am sure that members are aware that certain trades have a list of approved members. For example, the Council for Registered Gas Installers has a list of approved installers. We have found, as have other local authorities, that when we are concerned about an installation, we might suddenly discover that the chap with the CORGI certificate no longer works for the firm involved. No checks are made on the list. If someone is approved as a certifier, we must know that that approval is valid on the day that he submits the certificate to the local authority. There is a huge gap, and we must tease out how we can ensure that the system is robust, because it will stand or fall on that. Your point is well made. If someone certifies a particular part of a building, the local authority, as the verifier, would check the list and be obliged to accept the certification. We would not know at that stage whether the certifier was a bona fide operator; we would assume that he was, because he was on the list.

We have to consider very carefully how to put checks and balances into the system, if we are not to go down the line of having fragmented buildings with parts that we are happy with and parts that we think might be okay. The emphasis would be shifted away from one authority being responsible for everything towards a triumvirate of authorities feeding into the centre.

In written evidence you said that you support firmly the introduction of penalties for late applications for a building warrant, which is a thorny issue. What penalties do you consider to be appropriate?

I do not think that that is for us to decide. One applicant might make an application before starting work and might go through the full process of getting building control permission, while being monitored throughout. Another applicant might finish a two-storey extension to their house before coming to the local authority; that might sound daft, but it could happen. They are entitled to do that so long as they have not applied for or given notice of a completion certificate. Surely there should be a penalty on the latter applicant. Why should they take advantage of the system? How can a local authority know that the work has been done competently? The penalties must be heavy.

The association welcomes the introduction of stop notices in the bill, and I hope that we would pick up the illegal work. There are areas out in the country where buildings go up and nobody knows about them until they are well advanced. It is not for us to decide the level of penalty, but we would want it to be substantial.

You support substantial penalties—presumably financial—but you also mentioned the stop notices. Should part of the enforcement procedure provide more power to ensure that a building can be stopped, rather than, on completion of the building, the process ending in legal battles with people saying, "Take it down by two feet or pay me money"?

We would support 100 per cent the introduction of the stop notice. We tend to be fairly pragmatic and try to negotiate, even with people who break the rules. Unless the building work is horrendous, we are not in the business of telling people to take down the building and start again. We always try to negotiate.

Local authority building control would not go the whole way with the law, except as a very last resort, for two reasons. First, the legal system is not particularly supportive of building control's taking legal action against owners. Secondly, if things cannot be resolved, the implication is that local authorities should do the work themselves and recover costs. It is a brave local authority that goes down that road, for very obvious reasons of recovering costs and the hassles that go with that.

The stop notice would certainly be a benefit. It would be interesting to see how well it would work in practice. Local authorities serve notices and get general responses. On occasion, they serve notices and get absolutely no response. The same thing might happen with stop notices, but the stop notice would give us an immediate power, whereas the section that we serve gives the time span for someone to keep going and ignore us. On that basis, we would support stop notices.

Would self-certification be all right for minor projects, but not for major projects?

The principle is the same. The correct measure is the competence of the certifier, and there might be a graduated competence level. Some certifiers might be perfectly capable of certifying small buildings but not capable of certifying large projects. It all comes down to the way in which the system is framed and monitored. There could be a graduated system. The important point is not the competence in a single expertise, but the competence of the overall project. Building standards are so linked between trades and professions that someone who is not capable of assessing the overall aim or requirement could not be an approved certifier.

That brings us to the end of our questions for this panel of witnesses. I thank Bob Christie, Iain Ross and Bob Renton, whose contributions have been helpful. We will take up Bob Christie's suggestion and pursue evidence from English local authorities on the bill.

The committee will move into private session for a brief period. We shall reconvene in public in approximately 20 minutes, when we will take evidence from the Minister for Enterprise, Transport and Lifelong Learning.

Meeting continued in private.

Meeting continued in public.