Transport and the Environment Committee, 08 Jan 2003

Meeting date: Wednesday, January 8, 2003

Official Report 204KB pdf

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Building (Scotland) Bill: Stage 2

I ask members to ensure that they have copies of the marshalled list of amendments and the bill.

Sections 22 and 23 agreed to.

Section 24—Building warrant enforcement notices

Amendment 57 was debated with amendment 11.

I wish everyone a happy new year.

Amendments 57 and 58 moved—[Des McNulty]—and agreed to.

Amendment 59 is in a group on its own.

Amendment 59 would amend and broaden the provision on building warrant enforcement notices to reflect changes made by amendment 21, which removed the restriction on what an amendment to a building warrant might include.

I move amendment 59.

Amendment 59 agreed to.

Amendments 60 to 66 moved—[Des McNulty]—and agreed to.

Section 24, as amended, agreed to.

Section 25—Defective buildings

Amendment 107 is grouped with amendment 108.

Amendment 107 is intended to be a tidying-up exercise to grant local authorities power to carry out emergency repair work. Examples of such work include work on blocked drains and the right to erect scaffolding to facilitate repairs, such as those needed by Ryan's Bar, which has been much quoted during the committee's deliberations.

Amendment 107 has no hidden agenda or greater intent beyond the wish to transfer the powers contained in the Civic Government (Scotland) Act 1982 to the bill, where they would be placed alongside local authority powers to serve defective building notices.

I move amendment 107.

I support amendment 107. Following a fire in Aberdeen, the Poundstretcher building in Union Street was left in a dangerous condition. Although the owners of the property collected insurance money, they failed to carry out repairs to return the building to a safe condition, with the result that a workman who went into the building was killed. The local authority had major problems with being able to bring enough pressure to bear on the owner of the building to make it safe. The amendment might tackle such problems. I ask the minister to consider the important approach of giving local authorities adequate powers to tackle dangerous buildings in such circumstances.

I ask Angus MacKay to explain further the implications of amendment 107, which begins:

"Where it appears to a local authority to be necessary".

What criteria would the local authority use? I am anxious about the amendment's resource implications, were we to agree to it. In principle, we want to ensure that buildings are as safe as possible, so what would be the effect of the amendment?

My question is for Angus MacKay and the minister. I am interested in the minister's response to amendment 107, which has the sort of rationale that we should get on to the statute books.

Proposed subsection (15) says that the local authority may recover costs from the owner of a building if it wants to. It may also remit any sum, or part of any sum, if it wishes. I want to ask about circumstances in which a building becomes unsafe, not because of lack of repair or proper building upkeep but because of something happening outside. For example, an adjacent building or an earth tremor—God forbid—might undermine the building in question and place it an unsafe condition. In such circumstances, would an individual be expected to bear the cost, or would that be an insurance matter? I wonder about some of the unseen things that can happen to property. Would a local authority be able to seek redress—and perhaps costs—from an owner for action that the owner had taken, despite the fact that the owner has no right of appeal or any other mechanism to use against the local authority?

We are talking about a sensible strategy for emergencies. How would competitive tendering fit in? Would councils be able to take immediate action without putting the work out to tender?

I shall answer those questions as well as I am able to and in the order in which they were asked.

Maureen Macmillan raised the cost implications, which would be minimal because amendment 107 proposes to incorporate in the bill existing law from the Civic Government (Scotland) Act 1982. Therefore, I do not expect a significant additional cost.

On Bruce Crawford's point about costs being recovered by local authorities from an individual owner, or several owners, there would be a need to test the circumstances against the provisions of insurance policies. Without knowing the specific circumstances that Bruce has in mind, it is difficult to envisage what they might be. The details of a property owner's insurance policies would determine whether they were covered for certain costs. If an individual felt that the authority was pursuing them unreasonably or unfairly for costs that were not covered by insurance policies, the matter might have to be contested through law. If such an action were raised, a local authority would certainly have to defend its position in law. I find it difficult to conceive of an explanation that would meet all the circumstances that Bruce Crawford described.

On Robin Harper's point, we must consider the amendment for what it is. There is nothing fantastical and new in it; it would simply bring together existing provisions from the Civic Government (Scotland) Act 1982. Therefore, I do not envisage that any material change would be created.

I am concerned that we may be creating a responsibility for local authorities. If a local authority does not act in the way in which people perceive it should have done, the authority will be held liable for not having done so.

I am grateful to Angus MacKay for lodging amendments 107 and 108. I accept that there is merit in suggesting that we tidy up the provisions. However, the professional advice that I have received is that the best way of doing so may not be simply to import sections from the Civic Government (Scotland) Act 1982 that contain different legal language and have not been worked through in so far as the legal consequences of the bill are concerned.

If Angus MacKay were willing to withdraw amendment 107 and not to move amendment 108, I would be happy to consider lodging amendments at stage 3 to achieve the effect that he seeks. Executive officials have already had discussions with officials from the City of Edinburgh Council, which has a particular interest in the matter. We will consult both the council and Angus in developing the amendments that we want to lodge at stage 3.

I am happy with the minister's suggestion, as, I am sure, the City of Edinburgh Council will be. On that basis, I am happy to withdraw amendment 107.

Amendment 107, by agreement, withdrawn.

Section 25 agreed to.

Section 26—Dangerous buildings

Amendment 88 is grouped with amendments 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 105 and 106.

As drafted, the bill requires local authorities to remove occupants from a building only when the work that it intends to do relates to dangerous buildings. It does not cover danger from work that a local authority intends to do in other circumstances. The amendments are intended to rectify that situation. They would provide that a local authority must require the occupants to leave a building if such work might endanger them. That logical change to the bill would ensure occupants' safety.

Amendment 105 would insert a new section to cover work relating to various enforcement notices. The other amendments are consequential to amendment 105. I do not propose going through each amendment, although I will be happy for Lorimer Mackenzie to answer questions about the detail. However, I draw the committee's attention to amendments 102 and 103, which would ensure that the protection for tenants who were required to remove themselves from a building was extended in line with the new section.

Amendment 106 would provide a definition of "dangerous building" in section 51. It states that the term should be construed in accordance with section 26(1), on dangerous buildings, because, if the amendments were agreed to, the phrase would be used more widely in the bill. We are proposing to tidy up the process and extend the provision to take account of eventualities that we have recognised might arise.

I move amendment 88.

May I ask for clarification? If such a notice of temporary removal were given to occupants of a building and, through no fault of their own, they were forced to evacuate, would compensation be available?

We are talking about the protection of occupants' rights, which the provision was drawn up to cover. The issue of compensation is not really for the bill. In that context, we are concerned with ensuring that people can be removed from a building under the various enforcement circumstances that may arise. The issue of compensation, where appropriate, would arise out of the particular circumstances of the enforcement.

Lorimer Mackenzie reminds me that if a building became dangerous, redress would be sought against the owner rather than the local authority. We are seeking to give local authorities the power to ensure that people can be removed from a building safely.

Amendment 88 agreed to.

Amendments 89 and 90 moved—[Des McNulty]—and agreed to.

Section 26, as amended, agreed to.

Schedule 3

Evacuation of dangerous buildings and adjacent buildings

Amendments 91 to 103 moved—[Des McNulty]—and agreed to.

Schedule 3, as amended, agreed to.

Section 27 agreed to.

Section 28—Dangerous building notices

Amendment 67 is in a group on its own.

Amendment 67 is a sensible amendment that seeks to expand the remit of the building standards advisory committee in reviewing regulations, as set out in section 28. Under the bill as drafted, the committee can keep under review only the operation of building regulations in addition to its advisory role for ministers. We now believe that the committee could play a useful role in keeping under review all regulations made under the bill, including procedure regulations and regulations on fees and charges. Consequently, amendment 67 would permit the committee to carry out that broader role.

I move amendment 67.

Amendment 67 agreed to.

Section 28, as amended, agreed to.

Sections 29 and 30 agreed to.

Schedule 4 agreed to.

Section 31 agreed to.

Section 32—Scheduled monuments, listed buildings etc

Amendments 68 to 70 moved—[Des McNulty]—and agreed to.

Section 32, as amended, agreed to.

Section 33 agreed to.

Section 34—Service of notices etc

Amendment 104 is in a group on its own.

The purpose of amendment 104 is to ensure that people are given appropriate notice of the notices that are served under sections 22 to 26, which are building regulations compliance notices, continuing requirement enforcement notices, building warrant enforcement notices, defective building notices and dangerous buildings notices. Amendment 104 would provide that, when such notices are served, copies should be served on the owner, the occupier and others who it appears to the local authority might have an interest in the building. The amendment would therefore ensure that those who might be affected by work—in particular owners and occupiers, on whom the effect might be significant—would be informed of the existence and requirements of a notice.

Amendment 104 follows on in part from amendments that were agreed to at the committee's previous meeting, which will allow people other than an owner to apply for warrants, undertake work and submit completion certificates. Those amendments will also allow enforcement action to be taken against those people.

I move amendment 104.

I understand why amendment 104, which is a good amendment, has been lodged. It would protect people's rights and would ensure that what the local authority is trying to achieve is clear and transparent. However, what about the person who does a midnight flight and disappears off the scene because they find themselves in a difficult situation with their own building, such as a shop owner who has gone bankrupt and whose property is falling into disrepair? If the local authority were unable to serve the notice, would that prevent the work required on the building from being done? A local authority constituent of mine tried to repair an unsatisfactory building but could not trace the owner or anyone who was responsible for the building. I would not like what the Executive is sensibly trying to achieve with amendment 104 to put a brake on work being done if the relevant person cannot be traced.

The amendment would allow additional people, above and beyond the owner, to be notified. Nothing in the requirement to serve additional notices would delay work being undertaken. Where the owner is a midnight flier, as Bruce Crawford described them, the local authority could act through compulsory purchase or other mechanisms to undertake the work.

I am concerned about compulsory purchase. One of the problems with compulsory purchase is that, if the owner cannot be traced, advertisements have to be placed in the press to allow them time to come forward. The process is lengthy and time consuming. That is exactly why I asked those questions. Compulsory purchase can take a long time. If the local authority cannot act until compulsory purchase has been achieved, we may be building in a delay mechanism that could create even more danger and raise even more health and safety issues for members of the public.

I am happy to look into the circumstances of owners who cannot be found when compulsory purchase mechanisms are invoked, but such circumstances do not pertain to amendment 104. The amendment is about extending the serving of a notice to a range of people. I am happy to write to Bruce Crawford about compulsory purchase and the time issues that are associated with it, but those issues do not relate to amendment 104.

Amendment 104 agreed to.

Section 34, as amended, agreed to.

Sections 35 and 36 agreed to.

Schedule 5 agreed to.

Section 37—Work required by notice: right of entry

Amendments 71 to 74 moved—[Des McNulty]—and agreed to.

Section 37, as amended, agreed to.

Section 38—Tests of materials

Amendment 75 is in a group on its own.

Amendment 75 expands the definitions of "materials test" in section 38(3) to provide that it

"includes a test of materials in combination with other such materials and the test of the building as a whole".

Fragmentation was raised earlier. Amendment 75 will allow verifiers to test whether the materials that have been put together fulfil certain functions, such as thermal or sound requirements. The materials test can include a test of a whole building, where such a test would be relevant.

I move amendment 75.

Amendment 75 agreed to.

Section 38, as amended, agreed to.

After section 38

Amendment 105 moved—[Des McNulty]—and agreed to.

Sections 39 and 40 agreed to.

Section 41—Sale of materials from demolished buildings

Amendments 76 and 77 moved—[Des McNulty]—and agreed to.

Section 41, as amended, agreed to.

Section 42 agreed to.

Section 43—Penalties for offences

Amendment 78 moved—[Des McNulty]—and agreed to.

Section 43, as amended, agreed to.

Sections 44 to 49 agreed to.

Section 50—Meaning of "building"

Amendment 79, in the name of the minister, is grouped with amendment 87. I invite the minister to move amendment 79 and to speak to both amendments in the group.

If possible, I would like to hear what John Scott has to say about amendment 87 before I speak to it.

The Building (Scotland) Act 1959 includes "any railway line" in the list of exceptions. It was an oversight not to include that in the bill; therefore, amendment 79 is simply a technical amendment to include "any railway line" in the list of exceptions.

I move amendment 79.

I invite John Scott to speak to amendment 87. He may speak to the other amendment in the group if he wishes to do so.

The minister will be pleased to know that I had not considered railway lines.

Amendment 87 is designed to broaden the scope of the bill a little, but not too much. In evidence, the committee heard of the need to include in the bill areas of the built environment that are by definition not buildings, such as car parks, footpaths, street lighting, roads, and so on. We heard of the need to bring those important complementary features into the scope of the bill, and my amendment 87 seeks to achieve that. I note what is said in the minister's letter to the committee, and I lodged amendment 87 with a view to complementing that. The introduction of the expression "the built environment" would also allow ministers to include in the scope of the bill such areas as they saw fit. I would welcome the views of the minister and other members of the committee on that.

I seek clarification from the minister on the exception of "any railway line". Am I correct in assuming that the reason for that exception is that railway lines would fall under the jurisdiction of the Health and Safety Executive and UK legislation rather than the Building (Scotland) Act 1959?

On the convener's point, railway lines have never been incorporated in building legislation, so to incorporate them in the bill would take them away from the legislation that currently deals with them and would require a change to the bill. We want to promote consistency and not to give ourselves additional problems by not excepting something that we had intended to except, and which it would have been an oversight not to except—if you see what I mean.

I recognise the argument behind what John Scott is saying in amendment 87. However, I ask him not to move the amendment for a couple of reasons. First, the phrase "the built environment" is vague. I set up the cross-party architecture and the built environment group in the Scottish Parliament, which chose the phrase deliberately because it was vague and could encompass many interests. Some uses of the phrase "the built environment" in planning are a long way from the purposes of the bill. Therefore, it would not aid clarity in the bill to change the phrase in the long title.

Secondly, the mechanics of the bill are tied to the definition of the term "buildings", and to change that now might have a number of implications for the bill's substance. Therefore, if John Scott wants to go down that route, he should be mindful that it is a long and complicated means of changing the nature of the definitions in the bill. In that sense, amendment 87 would not add much.

There are no other amendments whose substance would justify amendment 87. My letter makes it clear that the Executive is aware of the relationship between buildings and their surrounding environment, such as roads and footpaths. However, amendment 87 does not tackle the problem sensibly and would cause unnecessary complications. On that basis, I ask John Scott not to move amendment 87.

Amendment 79 agreed to.

Section 50, as amended, agreed to.

Section 51—Interpretation

Amendment 106 moved—[Des McNulty]—and agreed to.

Section 51, as amended, agreed to.

Sections 52 and 53 agreed to.

Schedule 6

Modification of enactments

Amendment 108 not moved.

Schedule 6 agreed to.

Section 54 agreed to.

Long Title

Amendment 87 not moved.

Long title agreed to.

That brings us to the end of our stage 2 consideration of the Building (Scotland) Bill. An announcement will be made in tomorrow's business bulletin about lodging amendments for consideration at stage 3. I thank members, the minister and the Executive team for the swift progress that was made on stage 2 and I look forward to considering further amendments at stage 3.

I am very grateful to members of the committee. This might be the first stage 2 that has gone through without a vote.

You will provoke Bruce Crawford during stage 3, I suspect.