1 Amendment of s. 3 of Building (Scotland) Act 1959. S

In section 3 of the Building (Scotland) Act 1959 (hereafter in this Act referred to as “the principal Act”), for subsection (6) (which provides that the Secretary of State shall, before making building standards regulations under the said section 3, carry out certain procedures) there shall be substituted the following subsection:—

“(6)Before making any regulations under this section (except regulations to be made for the purpose only of consolidating other regulations revoked thereby) the Secretary of State shall consult the Building Standards Advisory Committee and such other bodies as appear to him to be representative of the interests concerned.”

2 Relaxation of building standards regulations.S

(1)For section 4 of the principal Act (which makes provision for the relaxation of building standards regulations in particular cases) there shall be substituted the following sections:—

“4 Relaxation of building standards regulations.

(1)Subject to the provisions of this section, if in relation to any particular building or any class of building it appears to the Secretary of State that it is unreasonable that any provision of the building standards regulations (being a provision which apart from this section applies, or by reason of a proposed change of use will apply, to that building or class of building) should apply to the building or class of building, or should so apply without relaxation, he may—

(a)in the case of a particular building, on an application made to him in that behalf give a direction dispensing with or relaxing that provision in relation to that building;

(b)in the case of a class of building, either on an application made to him in that behalf or of his own accord give a direction dispensing with or relaxing that provision generally in relation to that class of building.

(2)If the Secretary of State by regulations so provides as regards any provision of the building standards regulations, the power to dispense with or relax that provision under subsection (1)(a) above shall be exercisable by buildings authorities instead of by the Secretary of State:

Provided that any regulations made by virtue of this subsection shall except applications made by local authorities and may except applications of any other description.

(3)A direction under this section shall not be given in respect of any provision of the building standards regulations which is described in those regulations as not being subject to a direction under this section.

(4)Subject to subsection (5) below, a direction under this section may be given either unconditionally or subject to such conditions specified in the direction as appear to the Secretary of State or, as the case may be, the buildings authority to be required as a direct result of the dispensation or relaxation, not being conditions by virtue of which the direction is to cease to have effect in whole or in part, or an obligation to carry out any operations is to arise for any person, either—

(a)on a fixed date, or

(b)on, or on a date fixed by reference to, the occurrence of any event.

(5)A direction under subsection (1)(b) above shall have effect for the purpose of warrants under section 6 of this Act granted during such period as may be specified in the direction.

(6)Before giving a direction under subsection (1)(b) above the Secretary of State shall consult the Building Standards Advisory Committee.

(7)The Secretary of State shall notify all buildings authorities of the giving of a direction under subsection (1)(b) above and shall at the request of any buildings authority make available to the authority a copy of any such direction without charge.

(8)The Secretary of State may make regulations with respect to the procedure to be followed in connection with applications and directions under this section and with appeals under section 4A of this Act.

(9)Unless the context otherwise requires, references in this or any other enactment (whether passed or made before or after the passing of this Act) to building standards regulations shall, in relation to any building or class of building with respect to which a direction under this section or section 4A(3) of this Act is for the time being in force, be construed as references to the said regulations as, subject to that direction, they apply to that building or class of builiding.

4A Appeal against decision of buildings authority in application for relaxation of building standards regulations.

(1)If a building authority—

(a)refuse an application to dispense with or relax any provision of the building standards regulations which they have power to dispense with or relax, or

(b)grant such an application subject to conditions,

the applicant may, within such period from the date on which the buildings authority notify him of their decision as may be prescribed by regulations made under section 4(8) of this Act, appeal to the Secretary of State against the refusal or, as the case may be, against any of the said conditions.

(2)If within such period as may be prescribed by regulations made under the said section 4(8), or within such extended period as may at any time be agreed in writing between the applicant and the buildings authority, the buildings authority do not notify the applicant of their decision on the application, subsection (1) above shall apply in relation to the application as if the buildings authority had refused the application and notified the applicant of their decision on the last day of the said period.

(3)On any appeal under this section, the Secretary of State may either—

(a)confirm the decision of the buildings authority, or

(b)substitute for that decision such other decision as seems to him proper, and for that purpose give any such direction as he might have given if the buildings authority had not had power to dispense with or relax the provision in question and the application had been made to him under section 4(1)(a) of this Act.”

(2)Any application duly made to the Secretary of State under section 4 of the principal Act before the date on which this section comes into force, and not disposed of before that date, shall be dealt with in accordance with the provisions of the principal Act as if this Act had not been passed.

(3)Any direction given by the Secretary of State under section 4 of the principal Act either before or, by virtue of subsection (2) above, after the date on which this section comes into force shall have effect as if it had been given under the said section 4 as substituted by subsection (1) above.

3 Amendment of s. 6 of Building (Scotland) Act 1959. S

In section 6 of the principal Act (application of building standards regulations etc.), in subsection (8) (under which it is competent for buildings authorities to refuse warrants in certain circumstances), for paragraph (b) there shall be substituted the following paragraphs:—

“(b)any buildings authority to refuse to grant a warrant (or an amendment of the terms of a warrant) if the application for it has not been duly made in the prescribed manner, or

(c)any buildings authority to refuse to grant a warrant (or an amendment of the terms of a warrant), where the application relates to an extension to, or alteration of, a building, if they consider—

(i)in the case of a building which at the time of the application conformed to the building standards regulations, that as a direct result of the extension or, as the case may be, the alteration the building as extended or altered will fail to conform to the said regulations, or

(ii)in the case of a building which at the time of the application failed to conform to the building standards regulations, that as a direct result of the extension or, as the case may be, the alteration, the building as extended or altered will fail to conform to the said regulations to a greater degree than that to which it failed to conform at the time of the application.”

4 Reference to Secretary of State of applications for warrant under s. 6 of Building (Scotland) Act 1959. S

After section 6 of the principal Act there shall be inserted the following sections:—

“6A Reference to Secretary of State of applications for warrant under s. 6.

(1)The Secretary of State may give directions requiring applications under section 6 of this Act for a warrant for the construction or change of use of a building, or for the amendment of the terms of a warrant for the construction of a building, to be referred to him.

(2)A direction under subsection (1) above—

(a)may be given either to a particular buildings authority or to buildings authorities generally, and

(b)may relate either to a particular application or to applications of a class specified in the direction.

(3)Any application to which a direction under subsection (1) above relates shall be referred to the Secretary of State accordingly:

Provided that, if any such application has not been duly made in the prescribed manner, the buildings authority may refuse the application without referring it to the Secretary of State, and for the purposes of section 6(8)(b) of this Act any application referred to the Secretary of State under this subsection shall be deemed to have been duly made in the prescribed manner.

(4)Where an application is referred to the Secretary of State under subsection (3) above he shall give notice to the buildings authority either—

(a)that he does not propose to deal with the application, in which case it shall be considered and decided by the buildings authority in accordance with the provisions of section 6 of this Act; or

(b)that he proposes to consider and determine, in relation to the application, such of the questions mentioned in subsection (5) below as he may specify in the notice, in which case the application shall, subject to subsection (6) below, be considered and decided by the buildings authority as aforesaid; or

(c)that he proposes to consider the question whether, having regard to the need to secure the health or safety of the persons who will inhabit or frequent the building to which the application relates or the safety of the public generally, it is reasonable to impose in relation to that building requirements additional to or more onerous than those contained in the building standards regulations, in which case the application shall, subject to subsection (7) below, be considered and decided by the buildings authority as aforesaid; or

(d)to the effect mentioned in paragraph (b) above and also to the effect mentioned in paragraph (c) above, in which case the application shall, subject to subsections (6) and (7) below, be considered and decided by the buildings authority as aforesaid.

(5)The questions referred to in subsection (4) above are—

(a)in the case of an application for a warrant for the construction of a building or for the amendment of the terms of such a warrant, the question whether anything in any plans, specifications or other information submitted with the application shows that the building when constructed will fail to conform to the building standards regulations or to such part of those regulations as the Secretary of State may specify in the notice given by him under subsection (4) above in relation to that application;

(b)where such an application as is mentioned in paragraph (a) above relates to an extension to, or alteration of, a building, the following additional questions, namely —

(i)whether at the time of the application the building conformed to the building standards regulations or to such part of those regulations as the Secretary of State may specify as aforesaid;

(ii)if the building so conformed, whether as a direct result of the extension or, as the case may be, the alteration the building as extended or aItered will fail to conform to the building standards regulations or, as the case may be, to the part thereof so specified;

(iii)if the building failed to conform as mentioned in sub-paragraph (i) above, whether as a direct result of the extension or, as the case may be, the alteration the building as extended or altered will fail to conform to the building standards regulations or, as the case may be, to the part thereof so specified to a greater degree than that to which it failed to conform at the time of the application ;

(c)in the case of an application for a warrant for the change of use of a building, the question whether after the change of use the building will conform to so much of the building standards regulations, or to so much of such part of those regulations as the Secretary of State may specify as aforesaid, as will become applicable, or as will apply more onerously, to the building by reason of the change of use.

(6)Where in pursuance of paragraph (b) or paragraph (d) of subsection (4) above, the Secretary of State gives to a buildings authority a notice to the effect mentioned in the said paragraph (b), he shall consider and determine, in relation to the application to which the notice relates the questions specified in the notice and shall intimate his determination to the buildings authority, and in considering the application the buildings authority shall treat that determination as conclusive of the said questions and shall decide the application accordingly under section 6 of this Act:

Provided that, for the purposes of such a decision, subsection (8) of the said section 6 shall have effect as if it imposed a duty on the buildings authority to refuse to grant a warrant in the circumstances mentioned in paragraph (c) of that subsection.

(7)Where in pursuance of paragraph (c) or paragraph (d) of subsection (4) above, the Secretary of State gives to a buildings authority a notice to the effect mentioned in the said paragraph (c), he shall consider the question mentioned in the said paragraph (c). and if after consulting the Building Standards Advisory Committee and such other persons as may be specified in regulations made under section 6B(3) of this Act he considers that it, is reasonable to impose in relation to the building to which the application relates requirements additional to or more onerous than those contained in the building standards regulations, he shall give a direction that, if the warrant applied for is granted, that warrant shall be subject to the condition that such additional or more onerous requirements as may be specified in the direction are complied with, and shall intimate that direction to the buildings authority.

(8)The Secretary of State may give directions requiring applications under section 6(5) of this Act for an extension of the period specified in a warrant for the construction of a building intended to have a limited life to be referred to him ; and where any such application is so referred to him, the Secretary of State shall—

(a)consider and determine the question whether, having regard to the special provisions of the building standards regulations mentioned in section 6(4) of this Act, it is proper to extend the said period and, if so, by how much, and

(b)intimate his determination to the buildings authority,

and the buildings authority in deciding the application shall give effect to that determination.

Subsections (2) and (3) above shall apply for the purposes of this subsection as if directions under this subsection were directions under subsection (1) above.

6B Provisions supplementary to s. 6A.

(1)Where an application is referred to the Secretary of State under section 6A(3) of this Act, the power to give a direction under section 4(1)(a) of this Act dispensing with or relaxing any provision of the building standards regulations in relation to the building to which the said application relates shall be exercisable by the Secretary of State—

(a)either on an application made to him in that behalf or of his own accord,

(b)notwithstanding that the power to dispense with or relax that provision under the said section 4(1)(a) is for the time being exercisable by the buildings authority by virtue of regulations made under section 4(2) of this Act.

lt shall not be competent to appeal—

(a)under section 16(1)(a) of this Act against a decision of a buildings authority refusing to grant a warrant for the construction or change of use of a building, in so far as the reasons for that decision include a determination intimated to the authority by the Secretary of State in pursuance of section 6A(6) of this Act ;

(b)under section 16(1)(b) of this Act against a decision of a buildings authority refusing to extend a period relating to a building intended to have a limited life, if the reason for that decision is a determination intimated to the authority by the Secretary of State in pursuance of section 6A(8) of this Act.

(3)The Secretary of State may make regulations with respect to the procedure etc) be followed in connection with the reference to him of applications by virtue of section 6A of this Act and the consideration and disposal of applications so referred.”

5 Amendment of s. 8 of Building (Scotland) Act 1959. S

In section 8 of the principal Act (occupation of parts of roads for deposit of materials etc.)—

(a)after subsection (2) there shall be inserted the following subsection:—

“(2A)Before granting any permission under this section, the buildings authority shall consult the highway authority within the meaning of section 50(1) of the Roads (Scotland) Act 1970.” ;

(b)after subsection (3) there shall be inserted the following subsections:—

“(4)If at any time any portion of a road is occupied for the purpose of depositing materials or otherwise in connection with operations for the construction, repair, maintenance or demolition of any building without a permission granted under this section or otherwise than in accordance with a permission so granted (including the conditions, if any, to which the permission is subject), or if such occupation is continued beyond the period for which the permission was granted, the person conducting the operations shall be guilty of an offence against this Act.

(5)If at any time any portion of a road is occupied for the purpose of depositing materials in connection with such operations as are mentioned in subsection (4) above without a permission granted as aforesaid, or otherwise than in accordance with a permission so granted (including the conditions, if any, to which the permission is subject), any person, other than the person conducting the operations, who, either by himself or by his servant or agent, deposits materials on that portion of the road in connection with the operations shall be guilty of an offence against this Act.

(6)Where the person conducting the operations is charged with an offence under subsection (4) above it shall be a defence for him to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(7)Where any person is charged with an offence under subsection (5) above, it shall be a defence for him to prove that the offence—

(a)took place on the instructions, or by the authority, of his employer or of the person conducting the operations, or

(b)was due to a mistake, or

(c)was due to reliance on information supplied to him,

and that he was unaware that he was depositing the materials otherwise than under and in accordance with a permission granted under this section.

(8)If in any case the defence provided by subsection (7) above involves the allegation that the offence took place on the instructions, or by the authority, of another person, or was due to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.”

6 Amendments and repeals. S

(1)The enactments mentioned in Schedule I to this Act shall have effect subject to the amendments specified in that Schedule, being minor amendments and amendments consequential on the provisions of this Act or of the principal Act.

(2)The enactments mentioned in Schedule 2 to this Act are hereby repealed to the extent specified in relation thereto in the third column of that Schedule.

7 Interpretation.S

(1)In this Act the expression “the principal Act” means the M1Building (Scotland) Act 1959.

(2)This Act shall be construed as one with the principal Act.

(3)Any reference in this Act to any enactment shall be construed as a reference to that enactment as amended or extended, and as including a reference thereto as applied, by or under any other enactment including, unless the context otherwise requires, this Act.

8 Short title, extent and commencement.S

(1)This Act may be cited as the Building (Scotland) Act 1970, and the principal Act and this Act may be cited together as the M2Building (Scotland) Acts 1959 and 1970.

(2)This Act shall extend to Scotland only.

(3)This Act shall come into force as follows:—

(a)the following provisions shall come into force on such date as the Secretary of State may by order made by statutory instrument appoint, that is to say—

• sections 2 and 4,

• paragraphs 1(a) and (b), 2, 3, 4, 5, 7(a) and 8 of Part I, and paragraph 6 of Part II, of Schedule 1,

• Schedule 2 so far as relating to section 10 of, and Schedule 5 to, the principal Act;

(b)the remaining provisions shall come into force on the expiration of one month from the passing of this Act.

Section 6(1)

SCHEDULE 1S MINOR AND CONSEQUENTIAL AMENDMENTS

PART 1SM3 AMENDMENTS OF THE BUILDING (SCOTLAND) ACT 1959

1SIn section 6 (application of building standards regulations)—

(a)in subsection (2), after the word “section” there shall be inserted the words “and to section 6A of this Act” ;

(b)in subsection (3), for the words from “under section four” to the end there shall be substituted the following words:— “under —

(a)section 4 or 4A(3) of this Act, subject also to the condition that such conditions, if any, as are specified in the direction are observed ;

(b)section 6A(7) of this Act, subject also to the condition that such requirements as are specified in the direction are complied with.”;

(c)in subsection (8), after the word “1935” there shall be inserted the words “section 33 of the M4 Civil Defence Act 1939, section 10 of the M5 Clean Air Act 1956”.

2SIn section 7 (minor works), for the words “the last foregoing section” there shall be substituted the words “section 6 of this Act”.

3SIn section 10 (powers in relation to buildings constructed without warrant etc.)—

(a)in subsection (1), the words from “and if” to the end shall shall cease to have effect;

(b)after subsection (1) there shall be inserted the following subsections:—

“(1A)In any case falling within paragraph (a) of subsection (1) above, if within the period specified in the notice mentioned in that subsection the person upon whom that notice was served applies for a direction under section 4 of this Act in respect of the building and (if the application is made to the Secretary of State) notifies the buildings authority that he has done so, the said period shall be deemed to be extended so as to expire—

(a)where the direction applied for is given, at the end of the period of twenty-one days from the date of the giving of the direction ;

(b)where the direction is refused by the Secretary of State, at the end of the period of twenty-one days from the date of the refusal to give the direction;

(c)where the direction is refused by the buildings authority or is granted by the authority subject to conditions—

(i)if no appeal is made within the period within which an appeal can be made to the Secretary of State under section 4A of this Act, at the end of that period,

(ii)if an appeal is made to the Secretary of State under the said section 4A, at the end of the period of twenty-one days from the date on which the appeal is determined or abandoned;

and any reference in the following provisions of this section to the operations specified in the notice shall, in a case where the building standards regulations are relaxed by any such direction, be construed as a reference to those operations in so far as they are necessary to make the building conform to the said regulations as so relaxed.

(1B)If within the period specified in the notice mentioned in subsection (1) above (or, in a case falling within subsection (IA) above, that period as extended by virtue of that subsection) the person upon whom the notice has been served fails to show cause to the satisfaction of the buildings authority why he should not be required to execute the operations specified in the notice, the buildings authority may order him within such period as may be specified in the order, being a period of not less than twenty-eight days from the date when the order becomes operative, to execute the operations aforesaid or such other operations for the same purpose as may be specified in the order.”;

(c)in subsection (2), for the words “the foregoing subsection” there shall be substituted the words “subsection (IB) above” ;

(d)in subsection (4), for the words “subsection (1)” there shall be substituted the words “subsection (IB)”.

4Ssection 11 (power of local authorities to require buildings to conform to building standards regulations), in subsection (3)—

(a)the words “to the Secretary of State” shall cease to have effect

(b)for the words from “at the end of” to the end there shall be substituted the following words:—

“(a)where the direction applied for is given, at the end of the period of twenty-eight days from the date of the giving of the direction ;

(b)where the direction is refused by the Secretary of State, at the end of the period of twenty-eight days from the date of the refusal to give the direction;

(c)where the direction is refused by the buildings authority or is granted by the buildings authority subject to conditions—

(i)if no appeal is made within the period within which an appeal can be made to the Secretary of State under section 4A of this Act, at the end of that period,

(ii)if an appeal is made to the Secretary of State under the said section 4A, at the end of the period of twenty-eight days from the date on which the appeal is determined or abandoned;

and any reference in the subsequent provisions of this section to the specified provision shall, in a case where the specified provision is relaxed by any such direction, be construed as a reference to the specified provision as so relaxed.”.

5In section 16 (appeals), in subsection (1)—

(a)in paragraph (d), for the words “subsection (1)” there shall be substituted the words “subsection (IB)” ;

(b)after the word “may”, where it first occurs, there shall be inserted the words “(except as provided in section 6B(2) of this Act)”.

6SIn section 23 (inquiries)—

(a)in subsection (1), the words “ Without prejudice to anything in subsection (6) of section three of this Act” shall cease to have effect;

(b)in subsection (2), the words “or subsection (6) of section three of this Act” shall cease to have effect.

7SIn section 29 (interpretation), in subsection (1)

(a)in the definition of “building standards regulations”, after the words “section three” there shall be inserted the words “as read with section 4(9)”;

(b)after the definition of “contravene” there shall be inserted the following definition:— “ “enactment” includes an order, regulation or other instrument having effect by virtue of an Act;”.

8SSchedule 5 (procedure for directions under section 4) shall cease to have effect.

9SIn Schedule 9 (minor and consequential amendments), in paragraph 3, sub-paragraph (a) shall cease to have effect.

PART IIS AMENDMENTS OF OTHER ENACTMENTS

Burgh Police (Scotland) Act 1903 (1903 c. 33)S

1SSection 29 (penalty on unauthorised occupation of street) shall cease to have effect.

Ancient Monuments Consolidation and Amendment Act 1913 (1913 c. 32)S

2SIn section 18 (relaxation of byelaws), the words “or buildings” and the words from “provided that” to “sanitation” shall cease to have effect.

Civil Defence Act 1939 (1939 c. 31)S

3S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1

S

4S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2

Clean Air Act 1956 (1956 c. 52)S

5SIn section 10 (height of chimneys), for subsection (5) (application to Scotland) there shall be substituted the following subsection:—

“(5)In the application of subsection (1) above to Scotland—

(a)any reference to plans deposited in accordance with building regulations shall be construed as a reference to the plans, specifications and other information submitted with an application for a warrant under section 6 of the Building (Scotland) Act 1959;

(b)any reference to a local authority shall be construed as a reference to a buildings authority within the meaning of the said Act of 1959;

(c)any reference to the rejection of plans shall be construed as a reference to the refusal of such a warrant as aforesaid

and subsections (2) and (3) shall be omitted.”.

Thermal Insulation (Industrial Buildings) Act 1957 (1957 c. 40)S

6SIn section 7 (power of Minister and local authority to grant exemptions), in subsection (3)—

(a)for the words “the Fifth Schedule to” there shall be substituted the words “any regulations made under section 4(8) of”;

(b)for the words “section four” there shall be substituted the words “section 4(1)(a)” ;

(c)at the end there shall be inserted the words “and with any other necessary modifications”.

Roads (Scotland) Act 1970 (1970 c.20)S

7SIn section 24 (obstructions and excavations in roads without consent), in subsection (7), in paragraph (a), head (i) shall cease to have effect.

Section 6(2).

SCHEDULE 2S Enactments Repealed