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The Building Act, 1984

The Building Act 1984 received the Royal Assent on 31 October 1984 and the majority of its provisions cane into the force on 1 December 1984. It consolidated most, but not all , of the primary legislation relating to building which was formerly scattered in numerous other Acts of Parliament.

Part I of the Building Act 1984 is concerned with building regulations and related matters, while Part II deals with the system of private certification discussed in Chapter 4. Other provisions about buildings are contained in Part III which, amongst other things , covers drainage, the provisions of sanitary conveniences, and soon, as well as the local authority's powers in relation to dangerous buildings, defective premises, etc.

The provisions of the 1984 Act are of the greatest importance in practice, and many of them are referred to in this and subsequent chapters.

1984 Act, sec. 121

'Building' is defined in the 1984 Act in very wide terms. A building is 'any permanent or temporary building and, unless the context otherwise requires, it includes any other structure or erection of whatever kind or nature (whether permanent or temporary)'. 'Structure or erection' includes a vehicle, vessel, hovercraft, aircraft or other movable object of any kind in such circumstances as may be prescribed by the Secretary of State. The Secretary of State's opinion is, however, qualified. The circumstances must be those which 'in [his] opinion... justify treating it ... as a building'. The result in this definition is that many things which would not otherwise be thought of as a building may fall under the Act - fences, radio towers, silos, air-supported structures and the like. Happily, as will be seen there is a more restrictive definition of 'building' for the purposes of the 1991 Regulations, but a comprehensive definition is essential for general purposes, e.g. in connection with the local authority's powers to deal with dangerous structures. Hence the statutory definition is necessarily couched in the widest possible terms. In general usage (and at common law) the word 'building' ordinarily means 'a structure of considerable size intended to be permanent or at least to last a considerable time' (Stevens v. Gourely (1859) 7 CBNS 99) and considerable practical difficulties arose as to the scope of earlier building regulations which the 1984 definition has removed.

In Seabrink Residents Association v. Robert Walpole Campion and Partners (1988) (6-CLD-08-13; 6-CLD-08-10; 6-CLD-06-32) for example, the High Court held that walls and bridges on a residential development were not subject to the then Building Regulations 1972 because they were not part of 'a building'. The development was not to be considered as a homogenous whole. The then regulations, said Judge Esyr Lewis QC, were 'concerned with structures which have walls and roofs into which people can go and in which goods can be stored'. Each structure in the development must be looked at separately to see whether the regulations applied. 'Obviously a wall may be part of a building and so, in my view, may be a bridge'.

The linked powers

Local authorities exercise a number of statutory public health functions in conjunction with the process of building control, for example, controls on construction over drains and sewers. These provisions are commonly called 'the linked powers' because their operation is linked with the local authority's building control functions, both in checking deposited plans or considering a building notice, and under the approved inspector system of control. Many of the former linked powers have been brought under the building regulations, but local authorities are responsible for certain functions now found in the 1984 Act. In those cases, the local authority must reject the plans (or building notice) or the approved inspector 's initial notice if relevant compliance is not achieved or else must impose suitable safeguards. The relevant provisions are:

1984 Act, sec. 18

Construction over drains and sewers. Section 18, as amended , controls new building on top of drains, sewers, and disposal mains. The local authority must reject plans submitted if they propose building over a sewer or drain shown on the relevant public maps, unless they are satisfied that they can properly give consent either unconditionally or subject to conditions. The most usual condition is that the building owner enters into an access agreement for maintenance purposes. The local authority notify the water authority of the proposal and the water authority may give directions to the local authority as to how their section 18 functions are to be exercised. Disputes under the section are determined by a Magistrates' Court.

1984 Act, sec. 18

Provision of drainage. The local authority must similarly reject plans submitted for a new building or extension unless they show that the provision for drainage is satisfactory. They can insist that the drainage connects to a nearby public sewer. Disputes under section 21 are also dealt with by a magistrates' court.

Water Industry Act 1991 sec. 98

A related provision in section 98 of the Water Industry Act 1991 under which owners or occupiers of the premises can require the water authority to provide a public sewer for domestic purposes in their area, subject to various conditions which can include in an appropriate case the making of financial contribution.

1984 Act, sec. 25

Provisions of water supply. Section 25 requires the local authority to reject the plans of a house submitted under the building regulations unless they are satisfied with the proposals for providing the occupants with a sufficient supply of wholesome water for domestic purposes, by pipes or otherwise. Usually, of course, this will be by means of mains supply provided by the water authority under the Water Industry Act 1991. Disputes are determined by the Magistrates' Court.

Water Industry Act 1991, sec. 37

A related provision is section 37 of the Water Industry Act 1991 which enables a land owner who proposes to erect buildings to require the water authority to lay necessary mains for the supply of water for domestic purposes to a point which will enable the buildings to be connected to the mains at a reasonable cost, a provision which is of a considerable use to developers.

Building Regulations

1984 Act, sec. 1

The Secretary of state is given the power to make comprehensive regulations about the provisions of service, fittings and equipment in or in connection with buildings as well as about the design and construction of buildings. A very comprehensive list of the subject matter of building regulations is contained in Schedule 1. The regulations are supported by the approved documents, giving 'practical guidance'

1984 Act, Sch 1

Building regulations may include provision as to the deposit of plans of executed, as well as proposed work; for example where work has been done without the deposit of plans or there has been a departure from the approved plans. Broad powers are given to make building regulations about the inspection and testing of work, and the taking of samples.

1984 Act, secs. 3 & 4

Prescribed classes of buildings, services, etc. may be wholly or partially exempted from the regulation requirements. Similarly, the Secretary of State may by direction, exempt any particular building or buildings at a particular location.

1984 Act, Sch 1

Schedule 1 of the 1984 Act is a flexible provision and covers the application of the regulations to existing buildings. It enables regulations to be made regarding not only alterations and extensions, but also the provisions, alteration or extension of services, fittings and equipment in or in connection with existing buildings. It also enables the regulations to be applied on a material change of use as defined in the regulations and, very importantly, makes it possible for the regulations to apply where re-construction is taking place, so that the regulations can deal with the whole of the building concerned and not merely with the new work. The 1984 Act contains enabling powers for the making of regulations on a number of procedural matters.

The regulations made and currently in force are:

Most of these regulations have been amended, in some cases several times, and care should be taken to ensure that the most recent amendments are being used.

Building regulations - exemptions

Crown immunity The Building Regulations do not apply to premises which are occupied by the Crown. The general position regarding Crown exemption in that a structure does not bind the Crown unless it so provides either expressly or by necessary implication. In fact, there is provision in section 44 of the Building Act 1984 to apply the substantive requirements of the Regulation to Crown buildings but this has never been activated.

In recent years a number of premises have lost their Crown immunity, often in response to public opinion. These include National Health Service buildings (see section 60 of the National Health and Community Care Act 1990) and the Metropolitan Police. Additionally, the reorganisation of the Post Office has meant that whilst the Royal Mail is still regarded as Crown property, Post Office Counters is not.

The Metropolitan Police have again recently been granted exemption from building regulations The Building Regulations (amendment) Regulations 2000, 3rd July 2000.

In practice, it is normal for government department building work to be designed and constructed in accordance with the building regulations. In some areas the plans and particulars may even be submitted to the local authority for comment, although it is moor usual for these to be scrutinised by specialist companies (replacing the service which was formally given by the Property Service Agency) who will also carry out on-site inspections of the work in progress. Even so, such companies have no legal control over the work and cannot take enforcement action in the event of a breach of the Regulations.

Interestingly, Crown premises are not exempt from the certification under the Fire Precautions Act 1971. However, they are inspected not by the fire authority, but by the Crown Premises Inspection Group within the Home Office Fire Service Inspectorate, a bureaucratic anomaly which has attracted much criticism. Unfortunately, the powers of entry to premises contained in the 1971 Act do not apply to premises occupied by the Crown.

Building Act exemptions

Taken together, the Building Act 1984 and the building regulations 1991 (as amended), exempt certain uses of buildings and many categories of work from control. Unfortunately, the situation with regard to exempt building uses is often unclear. Section 4 of the 1984 Act removes control from:

It should be noted that local authority buildings are not exempt from either the procedural or substantive requirements of the Building Regulations.

Miscellaneous

There is power to approve the plans of a proposed building by stages. Usually the initiative will rest with the applicant as to whether to seek approval by stages - subject to the local authority's agreement . However, local authorities may - of their own initiative - give approval by stages:

1984 Act, Sec. 16

they might , for example, await further information. In giving stage approval, local authorities will be able to impose a condition that certain work will not start until the relevant information has been produced. Plans may also be approved subject to agree modifications, e.g. where there is minor defect in the plans.

1984 Act sec. 19

Section 19 of the Building Act 1984 deals with the use of short-lived materials. The provision applies where plans, although conforming with the regulations, include the use of items listed in the regulations for the purpose of section 19. In such circumstances the local authority has a discretion:

  1. To pass the plans;
  2. To reject the plans; or
  3. To pass them subject to the imposition of a time limit, whether conditionally or otherwise.

Interestingly, the Building Regulation 1991 contain no specific references to any particular materials, however as will be seen, regulation 7 of the 1991 Regulations requires that building work which must comply with the Schedule 1 requirements must be carried out 'with proper materials which are appropriate for the circumstances in which they are used...', and the supporting approved document deals with the use of short-lived material.

The local authority may impose a time limit either on the whole of a building or on particular work. Additionally, they may impose conditions as to the use of a building or the particular items concerned. Appeal against the local authority's decision lies to the Secretary of State.

Eventually, section 19 will cease to have effect when section 20, which is wider in scope, is brought into force by the Secretary of State.

1984 Act, sec 2

Building regulations may impose continuing requirements on the owners and occupiers of buildings, including buildings which are not, at the time of their erection, subject to building regulations. These requirements are of two kinds. Continuing requirements may be imposed first, in respect of designated provisions of the regulations to ensure that their purpose is not frustrated, e.g. the keeping clear of fire escapes; and second, in respect of the services, fittings and equipment, e.g. a requirement for the periodical maintenance and inspection of lifts in flats.

1984 Act, sec 11

Type relaxations may be granted by the Secretary of State; he may dispense with or relax some regulation requirement generally. A type relaxation can be made subject to conditions for a limited period only. It should be noted that before granting a type relaxation the Secretary of State should consult such bodies as appear to him to be representative of the interests concerned as he has to publish notice of any relaxations issued.

The Building Act 1984, sections 39 to 43, contains the appeal provisions.
The principal appeals to the Secretary of State are:

(a) Appeals against rejection of plans by the local authority.

1984 Act secs. 39 to 43

(b) Appeals against a local authority's refusal to give a direction dispensing with or relaxing a requirement of the regulations or against a condition attached by them to such a direction.

1984 Act, Sec 38 (not yet operative)

Interestingly, section38 of the Building Act 1984 is concerned with civil liability but has yet to be activated. Under this section, breach of duty imposed by the regulations will be actionable at civil law, where damage is caused, except where the regulations otherwise provide. 'Damage' is defined as including the death of, or injury to, any person (including any disease or any impairment of a person's physical or mental condition). The regulations themselves may provide for defences to such a civil action and section 38 will not, when operative, prejudice any right which exists at common law.

Dangerous structures, etc.

1984 Act, sec 77

Local authorities have power to deal with a building or structure which is in dangerous condition or is overloaded. The procedure is for the local authority to apply to the magistrates' court for an order requiring the owner to carry out remedial works or, at his option, to demolish the building or structure and move the resultant rubbish. The court may restrict the use of the building if the danger arises from overloading. If the owner fails to comply with the order within the time limit specified by the Court, the local authority may execute the works themselves and recover the expenses incurred from the owner, who is also liable to a fine.

1984 Act, sec. 78

The local authority may take immediate action in an emergency so as to remove the danger, e.g. if a wall is in danger of imminent collapse. Where it is practicable to do so, they must give notice of the proposed action to the owner and occupier. The local authority may recover expenses which they have reasonably incurred in taking emergency action, unless the Magistrates' Court considers that they might reasonably have proceeded under section 77. An owner or occupier who suffers damage as a result of action taken under section 78 may in some circumstances be entitled to recover compensation from the local authority.

1984 Act, sec. 79

Section 79 of the 1984 Act empowers local authorities to deal with ruinous and dilapidated buildings or structures and neglected sites 'in the interests of amenity', which in a term of wider significance than 'health and safety' : Re Ellis and Ruislip and Northwood UDC [1920] 1 KB 343. (section 76 of the Act enables them to deal with defective premises which are 'prejudicial to health or a nuisance'.)

Under section 79, where a building or structure is in such a ruinous or dilapidated condition as to be seriously detrimental to the amenities of the neighbourhood, the local authority may serve notice on the owner requiring him to repair or restore it or, at his option, demolish the building or structure and clear the site.

1984 Act, sec 80

Demolition is itself subject to control. Section 80 requires a person who intends to demolish the whole or part of a building to notify the local authority, the occupier of any adjacent building and the gas and electricity authorities of his intention to demolish . he must also comply with the requirements which the local authority may impose by notice under section 82.

The demolition notice procedure does not apply to the demolition of:

1984 Act, Secs. 81 & 82

The local authority may by notice require a person undertaking demolition to carry out certain works:

Other legislation

Although the Building Act 1984 attempted to rationalise the main controls over buildings, there are in fact a great many pieces of legislation, in addition to the Building Act and the Building Regulations, which affect the building, its site and environment and the safety of working practices on and within the building.

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