Health and Safety
Executive / Commission
Local authority circulars
To: Directors of Environmental Health/ Chief Environmental Health Officers of London, Metropolitan, District and Unitary Authorities and Chief Executives of County Councils.
For the attention of: Environmental Services / Trading Standards / Fire Authorities / Other
This circular gives advice to local authority enforcement officers
1 This circular gives guidance on how to deal with risks posed by structural instability of buildings and related structures. It gives guidance to local authorities (LAs) on enforcement where there is a potential overlap of interests. There is agreement between HSE and LAs on enforcement demarcation and LAs are asked to consider similar agreements between their own health and safety enforcement officers and Officers enforcing the Building Acts (their exact titles will vary according to local authority).
2 Hazards caused by structural instability may range from failing tiles to complete collapse of a building. The construction, alteration, demolition or neglect of a building may give rise to instability of either the structure directly effected or those adjacent. In all such cases the health and safety of the work force and members of the public may be put at risk .
3 Both Health and Safety enforcement officers and Officers enforcing the Building Acts have an interest in structural safety. Health and safety enforcement officers act under sections 2,3 and 4 of HSWA, Regulation 7 of the Management of Health and Safety at Work Regulations 1999 and, where construction activities are being undertaken, Regulation 9 of the Construction (Health Safety and Welfare) Regulations 1996. Officers enforcing the Building Acts apply building standards legislation designed amongst other things to protect persons in and around completed buildings and structures when such structures are known to be dangerous or potentially dangerous. In England and Wales LAs enforce the Building Act 1984 and other local legislation (including, in Inner London, the London Building Acts 1930 to 1939). In Scotland, LAs enforce the Building (Scotland) Act 1959, as amended, and the Building Standards (Scotland) Regulations 1981-1987. Further information on LAs' powers under the Building Acts can be found in Annex 1 for England and Wales, and Annex 2 for Scotland. Additionally, under the Highways Act 1980 (England and Wales) and the Roads (Scotland) Act 1984 there are duties on highway/roads/traffic authorities to ensure the safe passage of users, which can include dealing with dangerous or potentially dangerous buildings and structures.
4 The provisions of the Building Act 1984 do not at present apply to the Crown. There are also specific exemptions in the 1984 Act in respect of statutory undertakers and similar bodies specified in the Act, and educational buildings for which plans are approved by the Secretary of State for Education and Science. In addition certain buildings, notably agricultural buildings, temporary buildings and buildings (eg UKAEA, BAA and CAA) into which people do not normally go, are exempt in the regulations. However, they are not exempt from the remedial action powers of LAs under the Building Act and Public Health Act. In Scotland, UKAEA are exempt from the regulations unless the buildings are dwelling houses or offices. Crown buildings generally, as in England and Wales, are exempt from the remedial action powers of LAs.
5 HSE and LAs have responsibility for enforcement of HSWA under the Health and Safety (Enforcing Authority) Regulations 1998 and similar guidance to that below will apply to HSE enforcement officers when they are enforcing HSWA.
6 Normal approval and inspection of new building work for assessing compliance with Building Regulations 1991 (made under the Building Act), together with the protection of people, which may include initiation of remedial action for structural instability where there is a public danger is the role of an LAs Building Control Department (or local variant), or the highways/roads/traffic authorities, if appropriate. However, Health and Safety enforcement officers should address the structural safety of existing buildings as Section 1(3) HSWA explains that " risks arising out of or in connection with the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking,......and the condition of premises so used or any part of them", infere the public may also be at risk. Therefore enforcement officers need to be aware of the guidance given below. The Workplace (HS&W) Regulations are due for amendment and may include more on structural safety.
7 In the case of structural instability of buildings considered prejudicial to health and safety of people, usually in public places, the officers enforcing the Building Acts are best placed to act , since they have specific powers under sections 76 to 79 of Building Act 1984 and the Public Health Acts 1936 to 1961. In Scotland, LAs have a duty under section 13 of the Building (Scotland) Act 1959 to demand that an owner takes remedial action or to undertake it themselves. It is the policy of the Health and Safety Commission/Executive that the general provisions of HSWA section 3 will not normally be enforced when more specific legislation covers the risk in question, and where there is an agreement to that effect between the enforcing authorities involved.
8 However if a problem is brought to the attention of an Health and Safety enforcement officer or a potentially dangerous building or structure is noticed during normal inspection the following guidance should be followed.
9 Where a building or structure at enforced premises is effectively inaccessible to the general public (including children) and its collapse or partial failure would not endanger them, it may well be appropriate for any structural danger to be handled by enforcement officers, invoking section 2 or 3 of the HSWA, M(HSW)R, or where construction activities are/have been involved, Regulation 9 of the Construction (Health, Safety and Welfare) Regs 1996 (CHSW Regs), as the case may be. However, in Scotland, this does not prevent Building Control Officers from taking action in accordance with their duties under Section 13 of the Building (Scotland) Act 1959. There are, however, cases where Health and Safety enforcement officers enforce where the public have access and maybe private or publicly owned or operated, such as multistorey car parks.
10 Where the stability of a building, or part of it, is put at risk by work activity in, or around, the building then the enforcement officer should enforce under either the HSW Act, M(HSW)R or the CHSW Regs as appropriate. The officer enforcing the Building Acts should be informed of action taken in this respect, where appropriate.
11 In many cases there will be a choice of enforcement action being taken under the more specific legislation described in paragraph 7. The ultimate on-site sanction available under the HSW Act may not be sufficient to remove all persons from danger. For example, enforcement of a Prohibition Notice closing down a construction site which had already destabilized a building, or the prohibition of a process in a factory, might not effectively remove from danger other workers in the building, or members of the public who may be affected.
12 In section 3 cases, enforcement officers should take action under HSWA only in the circumstances where an enforcement notice would clearly prevent the potential hazard from developing and the officer is satisfied that the offending firm is prepared to take prompt remedial action. Often the extent of the problem will not immediately be apparent and both the assessment of danger and the practical remedy will require specialist advice, usually from FOD Regional Support Group's civil and structural engineers in the first instance.
13 In all other section 3 cases where use of more specific legislation is appropriate or there is reason to doubt the effectiveness of HSWA action, because the offending firm may well vacate the premises leaving others exposed to the hazard, the matter should be referred to the officer enforcing the Building Acts as early as possible.
14 The urgency with which enforcement officers deal with these matters will depend, of course, upon the degree of risk which should be thoroughly understood. Where there is a possible risk of imminent danger, enforcement officers may need to make arrangements by telephone from or near the premises, and in extreme cases remain there until assistance comes.
15 In handing over a case to the Officer enforcing the Building Acts, enforcement officers should make clear their concerns. This will usually be done at a joint visit. Telephone calls and discussions should be confirmed in writing. Officers enforcing the Building Acts are not always qualified to determine the actual danger, and reliance should not necessarily be placed on their judgment if the enforcing responsibility is HSE's.
16 In section 3 cases dealt with by HSE enforcement officers, the officer enforcing the Building Acts should still be informed in writing and the HSE officers action explained.
ANNEX 1
1 This annex gives additional information to Health and Safety enforcement officers on the legal powers available to local authorities (LAs) to deal with dangerous or structurally unstable buildings and related structures under the relevant sections of the Building Act 1984. These powers complement those available to enforcement officers enforcing HSWA in line with the proposed demarcation agreement.
2 Before recommending the use of a particular section it may be wise to consult the actual clauses and definitions. For example under Schedule 3, Part 2, Sections 71 to 75, 77 to 83, 85 and 90 do not apply to Inner London.
3 The Building Act 1984 consolidates certain enactment's concerning buildings and related matters. Part I gives powers to the Secretary of State to make building regulations for "(a) securing the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings; (b) furthering the conservation of fuel and power; and (c) preventing waste, undue consumption, misuse or contamination of water." Part 11 deals with the "supervision of building work etc other than by local authorities". Part Ill covers "Other provisions about buildings" including the powers of LAs with regard to the control of defective premises, dangerous or dilapidated buildings in Sections 76 to 79.
4 Section 76 deals with Defective Premises (ie premises in a state "prejudicial to health and a nuisance"). LAs have two courses of action. They can follow a procedure laid down in the Public Health Act 1936 for dealing with Statutory Nuisances involving the serving of notices upon the owner/occupier to rectify the matter. Alternatively they may invoke their powers under this section to remedy the problem themselves (after the expiration of a 9 day period of notice) and then recover expenses from the person upon whom the notice was served. However, if the recipient serves a counter notice, within the first 7 days of the 9 day period of his intention to rectify the matter himself the LA must take no action unless the work fails to proceed quickly enough. Any proceedings to recover the monies spent must satisfy the courts that the premises were "defective" and the normal procedures under the Public Health Act 1936 would have caused unreasonable delay in rectifying the matter. The LA cannot serve a notice under this section or proceed with the execution of any works if this would contravene Section 29 of the Town and Country Planning Act 1947 (ie a building preservation order).
5 Section 77 deals with Dangerous Buildings. If it is considered that a building or structure (or part thereof) is overloaded or in a dangerous condition, then the LA may apply to a Magistrates' Court for an order compelling the owner either to rectify the condition or demolish the building. If the order is not carried out within the time specified by the court, then the LA may execute the order (using any method they consider applicable) and recover any expenses they incur in doing so from the person in default. That person is also liable to a maximum fine on summary conviction of (currently) £50. If the condition arises purely from overloading then the-court can issue an order which restricts the use of the building until it is satisfied that the danger has been removed.
6 Section 78 deals with Emergency Measures which the LA Can take in respect of Dangerous Buildings. If a building or structure (or part thereof) is so overloaded or in such a dangerous condition that immediate action is required to remove the danger, then a LA may implement whatever measures are necessary to remove that danger. If it is reasonably practicable to do so they should first notify the owner and occupiers of their intentions. They are able to recover the expenses reasonably incurred in carrying out the work, however, they cannot recover the cost of fencing off or the services of a watchman for any period after the danger has been removed. In order to recover their expenses they have to prove to the court that action under section 77 was inappropriate. It should be noted that the LA may be liable for compensation for any damage caused in carrying out the emergency measures and that the decision to implement the Emergency Measures can be taken by a "proper officer" of the LA. Powers under this section cannot be applied to any structure forming part of a mine or quarry within the meaning of the Mines and Quarries Act 1954.
7 Section 79 deals with Dilapidated Buildings and Neglected Sites which are considered detrimental to the "amenities of the neighbourhood". This section gives the LA powers to require the owner either to execute works of repair or to demolish the building (or part of it) and remove the rubbish. This includes material resulting from or exposed by demolition. Similarly if such materials are left on site (or any adjoining land) giving an appearance which is considered to be "seriously detrimental to the amenities of the neighbourhood" the LA can require the owner to remove the offending materials. Should that person fail to carry out the work within a specified time then the LA can carry out the work and recover the expenses incurred. In addition, the person would be liable to a maximum fine on summary conviction of (currently) £1,000 plus a further fine not exceeding £2 per day for each day of default after conviction. Appeals can be made against a notice upon a restricted number of grounds which are listed in section 102 of the Act.
8 The powers of LAs in relation to the control of demolition are contained in sections 80 to 83 of the Act.
9 Section 80 requires anyone demolishing the whole or part of a building to notify the LA of their intention to carry out that demolition and wait until they have received LA approval before carrying out the work. The only exceptions are for demolition of:
10 Failure to notify the LA carries a maximum fine upon summary conviction of (currently) £1,000. The person notifying the LA must also send copies of the notification to the occupiers of any adjacent buildings, British Gas, and the Area Electricity Board. The LA gives its approval either by issuing a Notice under section 81 of the Act or failing to respond to the initial notification within the six week period. If the LA issues a Notice under section 81 copies of that Notice must also be sent to:
11 The enforceable matters of the notice issued by the LA are detailed in section 82 and can require the person on whom it is served to:
The Notice issued should impose a time period within which the work is to be carried out.
12 Section 83 deals with possible grounds for appeal against a Notice under section 81. In addition to the grounds specified in section 102 an appeal can be lodged where the owner of an adjacent building ought to pay or contribute towards the cost of the works.
13 Although it is their duty to implement the Act (by virtue of clause 91) sections 76 to 79 and 81 to 83 are discretionary by the inclusion of wording such as " if it appears to a LA . ." and "a LA may by notice require . .".
14. The demarcation agreement set out in paras 6 to 8 of the attached local authority circular should avoid any problems over who is to exercise their powers. Health and Safety enforcement officers should be aware that by invoking their powers Officers enforcing the Building Acts may incur expenses which may or may not be either budgeted for or recoverable.
15 Authority to proceed with action under these sections is generally delegated to nominated officers within the Building Control, Building Surveyors, Technical Services, Architects etc Department.
ANNEX 2
1 This Annex summarises the legal powers available to a local authority in Scotland to deal with dangerous building or buildings in need of repair. The powers are contained in the Building (Scotland) Act 1959, the Civic Government (Scotland) Act 1982 and the Housing (Scotland) Act 1987.
2 Building control applies to the construction, alteration, extension or demolition of a building with the statutory base contained in the Building (Scotland) Act 1959 as amended, hereinafter referred to as the 1959 Act. The essential purpose of building control in Scotland is to safeguard people in and around buildings.
3 Under section 13 of the 1959 Act, if a local authority considers that a building is dangerous it has a duty to require immediate evacuation and require such remedial action as is necessary, including demolition to protect the public or any adjacent property. The authority must serve on the owner a notice requiring remedial action or the demolition of the building within a stated period to remove the danger. If no action is taken the authority can serve an enforcement order and if this is not complied with the authority can carry out the necessary repair or demolition work and recover its expenses from the owner, see also sections 14 and 15 of the 1959 Act.
4 The procedures for the removal of occupants of a dangerous building are laid out in Schedule 7 to the Act.
5 The conduct of operations for demolition of buildings is covered in the Building Operations (Scotland) Act 1975 made under section 5 of the 1959 Act.
6 Under the Building Procedure (Scotland) Regulations 1981, as amended, the demolition of a building is subject to the granting of a warrant by the local authority.
7 Any person aggrieved by an order of a local authority in relation to a dangerous building or by refusal by a local authority to grant a warrant for the demolition of a building may appeal to the sheriff. The procedure is laid down in section 16 of the 1959 Act.
8 The local authority have similar powers under section 87 of the civic Government (Scotland) Act 1982, hereinafter referred to as the 1982 Act. Under section 87(1), the local authority may require the owner of any building in their area to rectify defects in order to bring the building into a state of repair. Where it appears to the local authority necessary in the interests of health and safety or to prevent damage to any property, they may enter the building to complete whatever action is necessary to rectify any defects, see section 87(3) of the 1982 Act. If an authority itself carries out necessary works section 87(4) enables it to recover its expenses.
9 There is provision for appeals to the sheriff under section 106 of the 1982 Act.
10 The Housing (Scotland) Act 1987. hereinafter referred to as the 1987 Act, enables a local authority to serve notice requiring works of repair and gives them power to require that houses be demolished. Under section 108, a local authority may serve a repair notice on a house which is in a serious state of disrepair and , if the person having control of the house declines to take action the local authority may undertake the work themselves. Under section 109 a local authority can recover the expenses involved in undertaking work.
11 The 1987 Act also makes provision for houses to be closed and subsequently demolished. Under section 114, a local authority may serve a closing order. Under section 115, an authority may serve a demolition order, and under section 123 an authority may enter and demolish a building. Section 89 also gives authorities power to demolish groups of homes under the Housing Action Area procedure.
12 There is provision for appeals to the sheriff against repair notices under section 111 of the 1987 Act, and against closing or demolition orders under section 129 of the Act. Section 94(7) enables representations to be made against a proposed Housing Action Area.