Moved by
Lord Young of Cookham
24: Schedule 5, page 166, line 16, at end insert—
“32A After section 36 insert—
“36A Removal or alteration of offending work in contravention of Fire Safety Regulations
(1) If any work contravenes any fire safety requirements in the building regulations, or breaches any fire safety duty in any relevant enactment, the appropriate national authority or building control authority, without prejudice to their right to take proceedings for a fine in respect of the contravention, may by notice require the person responsible for the work by a date specified in the notice to—
(a) pull down and rebuild the work,
(b) remove and replace the work, or
(c) effect such alterations in it as may be necessary to make it comply with the applicable building regulations.
(2) If a person to whom a notice has been given under subsection (1) above (called a “section 36A notice”) is unable to do the work specified in the notice because the person has no power to carry out the required work to the building and the building manager will not facilitate the required work within a reasonable period—
(a) the appropriate national authority or the building control authority may order that person instead to pay to it the amount of the expenses reasonably to be incurred to perform the work specified in the notice;
(b) the appropriate national authority or the building control authority shall hold the amount so received to be used by the building manager to carry out the work specified in the section 36A notice; or
(c) the appropriate national authority or the building control authority shall serve a section 36A notice on the building manager and subsections (3), (5) and (6) of this section shall apply.
(3) If a person to whom a section 36A notice has been given fails to comply with the notice before the expiration of the date specified in the notice the appropriate national authority or building control authority may—
(a) pull down and rebuild the work,
(b) remove and replace the work, or
(c) effect such alterations in it as may be necessary to make it comply with the building regulations, and recover—
(i) from the person responsible for the work the expenses reasonably incurred by the authority in doing so;
(ii) from the Scheme in whole or in part, on an interim or final basis, the expenses reasonably incurred or to be incurred by the authority in doing so; or
(iii) from the person responsible for the work any amount paid to the appropriate national authority or building control authority by the Scheme which if recovered shall be paid to the Scheme.
(4) A section 36A notice shall not be given—
(a) in respect of work completed before 1 June 1992 or such earlier date as the appropriate national authority may specify in regulations, or
(b) in the case of work completed after the coming into force of this section, more than 10 years from the date of completion of the work in question.
(5) Work specified in the section 36A notice shall be carried out so as to—
(a) reduce, insofar as reasonably practicable, the risk of noise, cold, damp and other hazards to residents while the work is carried out; and
(b) maintain, insofar as reasonably practicable, the design, character and amenity of the structure as it existed prior to the notice being issued.
(6) Where the person responsible for the work has been taking reasonable steps to complete the work but is unable to do so before the expiry of the date specified in the section 36A notice that person may apply to the person who issued the notice to request an extension of time which is reasonable in the circumstances.
(7) Where a section 36A notice has been issued the person responsible for the work shall—
(a) be liable for the costs of interim mitigation or safety measures and reimbursement of or compensation for increases in insurance premiums, in either case as may be specified in regulations made by the relevant national authority; and
(b) reimburse qualifying tenants for any such costs that they have been or are required to pay, the amount of such reimbursement if not agreed to be determined by the appropriate tribunal.
(8) Where the person responsible for the work has not complied with the section 36A notice before the expiry of that notice, or before the expiry of the extension of that notice under subsection (6), the appropriate national authority or the building control authority may—
(a) order that person to pay to it the amount of the expenses reasonably to be incurred to perform the work specified in the notice; and
(b) require that person to pay a penalty in respect of that failure to comply.
(9) Notice of a penalty under subsection (8) must be in writing and specify the date before which the penalty is required to be paid.
(10) In fixing a penalty under subsection (8) the appropriate national authority or building control authority must have regard to the length of time that has elapsed since the person on whom the penalty is imposed has known that the work was in breach during which the person has not remediated the work, the seriousness of the infringement concerned, and the desirability of deterring both the person on whom the penalty is imposed and others from failing to comply with notices under section 36A, and—
(a) no penalty fixed under this section may exceed 10% of the turnover of the person responsible for the work (determined in accordance with such provisions as may be specified in regulations made by the appropriate national authority);
(b) any sums received by a national authority in relation to a penalty are to be paid into the Consolidated Fund;
(c) any sums received by a building control authority are to be set off against any expenses paid by that authority under this section, with any remaining balance paid into the Consolidated Fund.
(11) For the purposes of this section “the appropriate tribunal” is—
(a) in respect of a long lease of premises in England, the First-tier Tribunal; and
(b) in respect of a long lease of premises in Wales, a leasehold valuation tribunal.
(12) Any person subject to a section 36A notice may not pass on to any qualifying tenant any expense, in whole or in part, arising from—
(a) the costs of compliance with any such notice; or
(b) the costs of any penalty for failing to comply with such a notice.
(13) The prohibition in subsection (12) shall have effect regardless of any provision to the contrary in any agreement made before or after the coming into force of this section.
(14) In this section—
“building manager” means the responsible person in relation to the building in question, as defined in Regulation 3 of the Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541) or any such other person that has the power to carry out the required work;
“fire safety requirements” means any requirement in Part B of Schedule 1 to the building regulations in force as at the date of the initial notice or full plans application;
“initial notice” has the same meaning as in section 47 of this Act;
“full plans application” means the date of any application under section 16 of this Act or an application for building control approval under paragraph 1B of Schedule 1 to this Act, as the case may be;
“long lease” has the same meaning as in sections 76 and 77 of the Commonhold and Leasehold Reform Act 2002;
“parent undertaking” has the same meaning as in section 1162 of the Companies Act 2006;
“person responsible for the work” means a person responsible for or a person responsible for commissioning the construction, erection or refurbishment of the work and, where that person is a company, any parent undertaking of that person;
“qualifying tenant” means any tenant under a long lease;
“relevant enactment” means section 1 or section 2A of the Defective Premises Act 1972.
36B Disputes over section 36A notices given by building control authorities
(1) The appropriate national authority must make arrangements with a body to establish a committee called the Technical Committee which, if established in accordance with the arrangements, has the functions given by this section.
(2) If a question arises between the target of a section 36A notice and a national authority or building control authority as to whether work contravenes the fire safety requirements of the building regulations in force at a particular time, the Technical Committee has jurisdiction to decide that question.
(3) The Technical Committee’s decision is binding on the building control authority and any potential target of a section 36A notice who was given an opportunity to make representations, unless the matter is referred to arbitration under section 36C.
(4) The Technical Committee does not have jurisdiction to decide a question that has already been decided by a court.
(5) A certificate by the appropriate national authority that a specified committee has been established in accordance with arrangements under subsection (1) is conclusive evidence of that fact in relation to the period for which the certificate is in force.
(6) Arrangements under subection (1) must, in particular, include—
(a) a presumption that the proceedings of the Technical Committee will normally be held in public;
(b) a requirement that the decisions of the Technical Committee are freely available to the public;
(c) that members appointed to the Technical Committee have appropriate skills to assess issues raised by section 36A notices; and
(d) that members of the Technical Committee are independent of—
(i) any party involved in the reference to the Technical Committee; and
(ii) any other member of the Technical Committee, or panel of the Technical Committee, hearing that particular reference.
(7) Arrangements under subsection (1) may, in particular, include requirements about—
(a) the composition of the Technical Committee or the appointment of its members;
(b) the right of the Technical Committee to form separate panels to give decisions on its behalf;
(c) the Technical Committee’s procedure or how its procedure is to be determined (including requirements for its procedures to be approved by the appropriate national authority); or
(d) review by the Technical Committee of its own decisions, including by a panel constituted of different members.
(8) The Technical Committee’s procedure may, in particular, include provision imposing time limits for making an application for a decision or the taking of other steps.
36C Challenging decisions of the Technical Committee
(1) If the Technical Committee has decided any question under section 36B(2), any person on whom the decision is binding may, if dissatisfied with the decision refer the question to arbitration.
(2) But a person may not refer the question to arbitration until any review process has been exhausted.
(3) Any arbitration under subsection (1)—
(a) shall be commenced by the person seeking arbitration requesting the President of the Chartered Institute of Arbitrators to appoint a single arbitrator to hear the dispute;
(b) shall be conducted in accordance with the rules of the Chartered Institute of Arbitrators; and
(c) shall not have the power to award any costs against the Technical Committee.
(4) The Technical Committee need not, but may if so advised, participate in any arbitration proceeding under this section.
(5) The relevant national authority or relevant building control authority must be given notice of any arbitration proceedings under this section and must be joined as a party to the proceedings if it so requests.
(6) Arbitrations under this section are statutory arbitrations in accordance with the terms of the Arbitration Act 1996.
(7) The relevant national authority may amend the identity of the arbitral body named in subsection (3) by regulation.
36D Notification by person with an interest in the building
(1) Any person with a property interest in a building may give notice to the appropriate national authority or building control authority that that person has reason to believe that a building has been constructed in a manner that contravenes any fire safety requirements in the building regulations.
(2) Where a notice under subsection (1) has been given the appropriate national authority or building control authority must, before the end of the period of 90 days beginning with the day on which it receives the notice, publish a response stating how it proposes to deal with the notice, and in particular—
(a) whether it has decided to take any action, or to take no action, in response to the notice, and
(b) if it has decided to take action, what action it proposes to take.
(3) The appropriate national authority must make regulations regarding notices under this section, in particular regarding —
(a) the manner of giving notice;
(b) the calculation of time; and
(c) the designation of a proper officer or proper officers to receive the notices;
and any notice under subsection (1) given in accordance with regulations made under this section shall be deemed valid.
(4) In this section, “property interest” means an estate in fee simple or a term of years absolute (whether legal or equitable).
36E Duty to provide information
(1) Where an appropriate national authority or building control authority has received a notice under section 36D, or acting on its own initiative has reason to believe that a building has been constructed in a manner that contravenes any fire safety requirements in the building regulations, the relevant authority may by notice—
(a) require the person the relevant authority reasonably believes to be the person responsible for the work by a date specified in the notice to provide copies of all such plans, documents or other information as the authority may reasonably require at a time and place, and in a form and manner, and to a person specified in the notice;
(b) require any person to attend at a time and place specified in the notice to give evidence to the relevant authority or a person nominated by the relevant authority for the purpose;
(c) require any person to supply the relevant authority with such estimates, forecasts, returns or other information as may be specified or described in the notice and at a time and place, and in a form and manner, and to a person so specified.
(2) A notice under this section shall include information about the possible consequences of not complying with the notice.
(3) The person to whom any document is produced in accordance with a notice under this section may, for the purpose of this Part, copy the document so produced.
(4) No person shall be required under this section—
(a) to give any evidence or produce any documents which he or she could not be compelled to give or produce in civil proceedings before a court; or
(b) to supply any information which he or she could not be compelled to supply in evidence in such proceedings.
(5) In this section “court” means the High Court of England and Wales.
36F Fees to be paid to relevant authority
(1) The appropriate national authority may by regulations make provision for the payment of fees to the appropriate national authority or building control authority in respect of—
(a) any notice given under section 36A; or
(b) any decision by the Technical Committee under section 36B.
(2) Regulations under this section may in particular—
(a) make provision as to when a fee or charge payable under the regulations is to be paid;
(b) make provision as to who is to pay a fee or charge payable under the regulations;
(c) make provision as to how a fee or charge payable under the regulations is to be calculated (including who is to make the calculation);
(d) prescribe circumstances in which a fee or charge payable under the regulations is to be remitted or refunded (wholly or in part);
(e) prescribe circumstances in which no fee or charge is to be paid; or
(f) make provision as to the effect of paying or failing to pay a fee or charge in accordance with the regulations.
(3) Regulations under this section may—
(a) contain incidental, supplementary, consequential, transitional and transitory provision and savings;
(b) in the case of regulations made by virtue of subsection (2)(f) or subsection (3)(a), amend, repeal or revoke any provision made by or under this Act or by or under any other Act.
(4) A relevant national authority or building control authority determining the amount of fees or charges in pursuance of provision made by regulations under subsection (1) must secure that, taking one financial year with another, the income from the fees or charges does not exceed the cost to the relevant authority of performing the function or doing the thing (as the case may be).
(5) For the purposes of this section, a financial year is the period of 12 months beginning with 1 April.
36G Penalties: failure to comply with information requirements
(1) Where the appropriate national authority or building control authority considers that a person has, without reasonable excuse, failed to comply with a requirement imposed on the person under section 36E (Duty to provide information), it may impose a penalty of such amount as it considers appropriate.
(2) The amount may be—
(a) a fixed amount at level 5 on the standard scale,
(b) an amount calculated by reference to a daily rate, or
(c) any combination of a fixed amount and an amount calculated by reference to a daily rate.
(3) In relation to a penalty imposed under subsection (1)—
(a) in the case of an amount calculated by reference to a daily rate, the daily rate may not exceed level 4 on the standard scale;
(b) in the case of a fixed amount and an amount calculated by reference to a daily rate, the aggregate amount may be at level 5 on the standard scale.
(4) In imposing a penalty by reference to a daily rate—
(a) no account is to be taken of any days before the service of the notice under section 36E, and
(b) unless the authority determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate the day on which the requirement concerned is satisfied.
36H Power to make fire safety remediation regulations
(1) The appropriate national authority may, for any of the purposes of 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, make regulations with respect to the matters mentioned in subsection (2) below.
(2) Those matters are—
(a) when a section 36A notice may be made only by either the appropriate national authority or a building control authority;
(b) where there is more than one person responsible for the work, the designation of a lead person responsible and the contribution to be made by other responsible persons;
(c) where money is paid under section 36A(2) to the relevant authority, the manner in which that authority shall hold that money and the conditions applied to it.
(3) Regulations made under subsection (1) above are known as fire safety remediation regulations.
(4) The power to make fire safety remediation regulations is exercisable by statutory instrument, which is subject to annulment in pursuance of a resolution of either House of Parliament.”
Member’s explanatory statement
This probing amendment is consequential on the Building Indemnity Scheme, expanding and improving existing enforcement powers under the Building Act 1984.