Section 29 of the Building (Scotland) Act 2003
Section 29 of the Building (Scotland) Act 2003 and the Planning (Listed Building and Conservation Area) (Scotland) Act 1997
(Legislation is at the end of this page)
Operational Position:
When safety works are carried out under Section 29 of the Building (Scotland) Act 2003, the Building Standards Authority shall not be expected to submit an application under the Planning( Listed Building and conservation Area)(Scotland) Act 1997 because:
- the operations are necessary to ensure public safety,
- the Planning Authority are aware of the works as under Section 8(3)(d) of the Planning (Listed Building and Conservation Area)(Scotland)Act 1997, they are required to notified, as soon as reasonably practical, by the Building Standards Authority of the works
- the operations are necessary safety works which therefore mitigates any case for prosecution against the offence of carrying out works to a listed building without authorisation.
Points to note
- The Building (Scotland) Act 2003 regulated by South Ayrshire Council as Building Standards Authority.
- The Planning( Listed Building and Conservation Area)(Scotland) Act 1997 is regulated by South Ayrshire Council as Planning Authority
- A Local Authority cannot take formal enforcement action against itself.
- The listed building is not owned by the Building Standards Authority
- The Building Standards Authority will look to recover its costs for the emergency works from the buildings owner.
Commentary
It is a regular occurrence that listed buildings fall into a state of disrepair and can become a danger to the public or adjacent buildings as set out in Section 29 (1) of the Building (Scotland) Act 2003. If the Building Standards Authority consider that urgent action is required to address the danger then it many carry out the necessary works, as set out in Section 29 (3) of the Building (Scotland) Act 2003. This essential immediate work will result in the downtaking of part or all of the listed building. In carrying out these works the BSA can only carry out necessary works to remove the danger.
Section 29(5) of the Building (Scotland) Act 2003 clarifies that no building warrant is required, thus reflecting the urgency of the works and the integrity of the officials authorising the works.
Section 35 (3) of the Building (Scotland) Act 2003 indicates that the Building Standards Authority "must ....if reasonably practicable" consult with the Historic Environment Scotland and "the Planning authority (where the planning authority is not the local authority)". Obviously the legislation assumes that as South Ayrshire Council is both Planning and Building Standards Authority that no formal consultation is required between the two Departments within the Council.
With regards to the Listed building legislation, Section 6 of the Planning( Listed Building and Conservation Area)(Scotland) Act 1997 requires any work to a listed building to be "authorised" ie application made and by approved the Planning Authority. Where works have been carried out to a Listed Building prior to consent being granted Section 7 (3) f the Planning( Listed Building and Conservation Area)(Scotland) Act 1997 provides for a process for a retrospective application to be made and consented. Section 8 (1) tells us that if a person does not get authorisation ,under Section 6 you are guilty of an offence.
In Section 8(3) of the Planning( Listed Building and Conservation Area)(Scotland) Act 1997, if the Planning Authority is looking to carry out proceedings ie enforcement action, for an offence under Section 6, Section 8 (3)(a)(b) &(C) provide reasons for defence. They are :
- "a)that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building," Works by the Building Standards Authority require to be "necessary" under Section 29 of the Building(Scotland) Act 2003 therefore meeting this criteria.
- "b)that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter," Works by the Building Standards Authority require to be "necessary" under section 29 of the Building(Scotland) Act 2003 therefore should be the best option available and hence the most practicable to balance safety and building preservation therefore meeting this criteria.
- "(c) that the works carried out were limited to the minimum measures immediately necessary" For the Building Standards Authority to carry out works under Section 29 of the Building (Scotland)Act 2003 they require to be satisfied that "urgent action is necessary" to address the danger. Therefore this criteria is addressed.
Section 8 (3)(A) of the Planning( Listed Building and Conservation Area)(Scotland) Act 1997 requires the Building Standards Authority to "justify in writing" the Section 29 works to the Planning Authority as soon as reasonably practicable. The Building Standards Authority communicates with the Planning Authority such information regularly and timeously. Criteria addressed.
Requirement for retrospective Listed Building application
In any circumstances, where works have been carried out to a listed building without authorisation, it is at the discretion of the Planning Authority to pursue the submission of retrospective listed building consent. Where the Building Standards Authority have been required to invoke the legislation to carried out urgent and necessary works to a building in the interests of public safety, it is considered unnecessary and unlawful for the Building Standards Authority to seek approval from another regulatory body within the same Council to legitimise emergency works under a separate consenting regime.
Section 35(4) of the Building (Scotland) Act only deals with works to listed buildings carried out pursuant to notices, and not those works undertaken by a local authority under statutory powers. Section 35(4) provides that where the works required by the notice are of a nature that would usually require listed building consent, conservation area consent or similar, that requirement is not altered or removed as a result of the notice or section 35 of the 2003 Act. The legislation does not include a similar provision for works undertaken by the LA under the section 29(3) powers. We must assume that the omission /different treatment between these scenarios results from a deliberate decision taken by Parliament. It shows that Parliament did not intend for a local authority to make a retrospective application for LBC following works undertaken pursuant to section 29(3) powers.
Prosecution by Planning Authority
Where works have been carried out to a listed building without authorisation, and no subsequent retrospective application has been submitted, it is for the Planning Authority to determine if an offence has been committed and if the matter should be brought forward for prosecution.
In the circumstance that the Building Standards Authority is presented with a building in a dangerous condition and the Building Standards Authority are carrying out "urgent action" which its officials have deemed "necessary" to protect the public or adjacent buildings or places from danger these action meet the mitigating criteria set out in Section 8(3) of the Listed Building Legislation.
Therefore, due to the absence of authorisation from the PA, an offence under the Act would take place, however the PA would not proceed with any enforcement action as the works would be deemed legitimate necessary works as detailed under Section 8 of the Listed building Legislation, thus the need for enforcement action mitigated.
It is also noted that the Building Standards Authority and the Planning Authority are both regulatory bodies within the Council and therefore legally not able to take enforcement action against each other.
Legislation extracts
Section 29 of the Building (Scotland) Act 2003
"Dangerous buildings
(1)This section applies where it appears to a local authority that a building (a "dangerous building") constitutes a danger to persons in or about it or to the public generally or to adjacent buildings or places.
(2)The local authority must carry out such work (including, if necessary, demolition) as it considers necessary—
(a)to prevent access to the dangerous building and to any adjacent parts of any road or public place which appear to the authority to be dangerous by reason of the state of the building, and
(b)otherwise for the protection of the public and of persons or property in places adjacent to the dangerous building,
and may recover from the owner of the dangerous building any expenses reasonably incurred by it in doing so.
(3)Where the local authority considers that urgent action is necessary to reduce or remove the danger it may, after giving the owner of the building such notice (if any) as the circumstances permit, carry out such work (including, if necessary, demolition) as it considers necessary to reduce or remove the danger and may recover from the owner of the dangerous building any expenses reasonably incurred by it in doing so.
(4)The work which may be carried out under subsection (3) is work which could have been specified in a notice under subsection (6) in relation to the dangerous building.
(5)A building warrant is not required for the carrying out of work by a local authority under subsection (2) or (3) but, after the completion of such work, the local authority must register in the building standards register a completion certificate certifying that the work has been carried out.
(6)Except where the danger has been removed by work carried out under subsection (3), the local authority must serve on the owner of the dangerous building a notice (a "dangerous building notice") requiring the owner to carry out such work as the notice may specify.
(7)Section 30 makes further provision about dangerous building notices."
Section 35 BSA Scheduled monuments, listed buildings etc.
"(1)This section applies to a building which is—
(a)included in the schedule of monuments compiled and maintained under section 1 of the Ancient Monuments and Archaeological Areas Act 1979 (c. 46),
(b)included in a list of buildings of special architectural or historic interest, being a list compiled or approved under section 1 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (c. 9),
(c)subject to a building preservation notice under section 3 of that Act, or
(d)one to which section 66 of that Act (control of demolition in conservation areas) applies.
(2)Before—
(a)serving—
(i)a building regulations compliance notice,
(ii)a continuing requirement enforcement notice,
(iii)a building warrant enforcement notice,
(iv)a defective building notice, or
(v)a dangerous building notice,
requiring a person to carry out any work (including demolition) in relation to a building to which this section applies, or
(b)carrying out work under section 29(3) in relation to such a building,
a local authority must (but in the case of paragraph (a)(v) or (b) only if reasonably practicable) consult the persons specified in subsection (3).
(3)Those persons are—
[F1(a)Historic Environment Scotland,]
(b)the planning authority (where the planning authority is not the local authority), and
(c)such other persons as the local authority thinks fit.
(4)Where, in relation to a building to which this section applies, a person is required by a notice of a description specified in subsection (2)(a) to carry out any work (including demolition) in relation to the building, the requirement has effect only in so far as it is not inconsistent with any provision of the Acts specified in subsection (1) relating to the carrying out of work on or in relation to the building "
Planning( Listed Building and Conservation Area)(Scotland) Act 1997
"Section 6 Restriction on works affecting listed buildings.
Subject to the following provisions of this Act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised."
"Section 7 Authorisation of works: listed building consent.
(1)Works for the alteration or extension of a listed building are authorised if—
(a)the planning authority or the Secretary of State has granted written consent for the execution of the works, and
(b)the works are executed in accordance with the terms of the consent and of any conditions attached to it.
(2)Works for the demolition of a listed building are authorised if—
(a)such consent has been granted for their execution,
(b)notice of the proposal to execute the works has been given to[F1Historic Environment Scotland],
(c)after such notice has been given either—
(i)for a period of at least 3 months following the grant of listed building consent, and before the commencement of the works, reasonable access to the building has been made available to[F2Historic Environment Scotland]for the purpose of recording it, or
[F3(ii)Historic Environment Scotland has stated in writing that it has completed its recording of that building or that it does not wish to record it,]and
(d)the works are executed in accordance with the terms of the consent and of any conditions attached to it.
(3)Where—
(a)works for the alteration, extension or demolition of a listed building have been executed without such consent, and
(b)written consent is granted by the planning authority or the Secretary of State for the retention of the works,
the works are authorised from the grant of that consent.
F4(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)The Secretary of State may by order provide that subsection (2) shall have effect with the substitution for the reference to[F5Historic Environment Scotland]of a reference to such other body as may be so specified.
(6)Such an order shall apply in the case of works executed or to be executed on or after such date as may be specified in the order.
(7)Consent under subsection (1), (2) or (3) is referred to in this Act as "listed building consent".
"Section 8 Offences.
(1)If a person contravenes section 6 he shall be guilty of an offence.
(2)Without prejudice to subsection (1), if a person executing or causing to be executed any works in relation to a listed building under a listed building consent fails to comply with any condition attached to the consent, he shall be guilty of an offence.
(3)In proceedings for an offence under this section it shall be a defence to prove the following matters—
(a)that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building,
(b)that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter,
(c)that the works carried out were limited to the minimum measures immediately necessary, and
(d)that notice in writing justifying in detail the carrying out of the works was given to the planning authority as soon as reasonably practicable.
(4)A person guilty of an offence under this section shall be liable—
(a)on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding[F1£50,000], or both, or
(b)on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine, or both.
(5)In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence."
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