When are they required?
Building regulation consent is usually required if you want to put up a new building or extend or alter (structurally) an existing one or install drains, heating or sanitary facilities. It may also be needed for the conversion of a garage or attic or even basement to a habitable room.
Certain other works require the builder/installer to be registered and to provide a certificate to confirm that the work complies with building regulations. These are:
- New or replacement doors and windows with glazing will require a “FENSA” certificate or Building Regulations completion certificate if installed since 1 April 2002;
- Any central heating boiler installed since 01 March 2003 will need an installation certificate issued by a registered plumber;
- Certain electrical wiring installed or added since 1 January 2005 must carry a compliance certificate issued by an authorised electrician.
Part of the job we do when acting for you in the purchase of a property is to check that work carried out in the past received any necessary building regulation consent. If you require a mortgage, we are also under a duty to your lender to do so.
Enforcement powers
The local authority can serve an enforcement notice (under Section 36 Building Act 1984) requiring the owner to alter or remove work which is in breach of building regulations. The owner can also be fined for the contravention, although proceedings to do so must be taken within six months of the offence.
An enforcement notice cannot be served more than 12 months after the building work has been completed.
The local authority also has the power to issue an injunction requiring remedial works and there is no cut-off time in this respect. However, an injunction will only be granted if there is an imminent danger of the building collapsing or causing a problem to the public. Further, the local authority must not delay in bringing the injunction once they have become aware of the condition of the building.
What if the works are more than 12 months old and there is no evidence of building regulation consent?
The local search we carry out on your behalf, depending on the local authority may not reveal decisions on building regulations that are more than 20 years old.
Very often the seller will have no information as to whether or not necessary consents were obtained for works carried out by a predecessor.
In many cases the buyer will be safe to assume that if more than 12 months have passed since the work was completed, there will be no practical comeback. However, the buyer should bear in mind that even if the council can take no enforcement action, the works might not have been carried out properly. In the case of certain works, e.g. a loft conversion, this could be expensive to remedy and possibly even life-threatening if, for instance, there is inadequate means of fire escape from the top of the building.
In such circumstances a buyer should always seek the advice of a structural surveyor and consider insisting on a Regularisation Certificate being obtained by the Seller. This would be issued by the Building Control department in cases where it was possible for the Building Inspector to sign off the works after the event.
Should indemnity insurance be purchased?
It is important to understand that indemnity insurance cover will only protect the insured against loss resulting from enforcement action by the local authority. The policy will not pay out if you discover a problem with past workmanship which needs to be put right, but where no action is taken by the council. The chance of the council taking any action in the case of works more than 12 months old is extremely unlikely.
We do not feel there are any circumstances where we would recommend an indemnity policy over obtaining full survey advice or seeking a Regularisation Certificate in appropriate circumstances. However, sometimes lenders require this before lending on properties where completion certificates are not available.
Some solicitors continue to call routinely for indemnity insurance cover wherever there is no evidence of past building regulation consent. In most cases the price payable for such a policy is fairly small – this is a one-off payment and the policy will cover the present and future owners of the property. There is, therefore, a case for buying a policy as a “belt and braces” measure, and also in case it is demanded of you on a future sale.
However, you should never rely on such a policy instead of obtaining the advice of a structural surveyor.
This document is for general information only and is not intended to provide legal advice. Dixon Ward accept no liability in connection with any loss suffered as a result of reliance on the information contained in this factsheet.
