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Is building regulation approval required?

Napthens - April 30th 2018

From time to time, the absence of building regulations approval can be a stumbling block to progress on a sale.

In this article we provide you with an overview of the facts and options surrounding building regulations that we discuss with our clients.

As you probably know, building regulations approval is required for a wide variety of work from erecting an extension, to installing cavity wall insulation, or underpinning a building. Building regulations approval also extends to change of energy status and new bathroom installations.

Building regulations approval can be carried out by the local authority’s building control services or an approved inspector - or in certain circumstances, under the Competent Person Scheme (CPS).   (Under the CPS, an authorised installer can self-certify certain types of work instead of obtaining building regulations approval. Various types of work can be self-certified including boiler installation and replacement windows and doors).

If full plans approval is needed, plans and details of the work are submitted to the local authority and the building control department then monitors the work throughout the course of construction.

For small works, another option could be a building notice.  This notice is submitted to the local authority’s building control service and when the works have completed the local authority’s building control service or approved inspector will issue the completion certificate once final inspection has taken place.

Enforcement

A local authority can take enforcement action if works contravene building regulations.  This can result in the works being altered or removed, obtaining an injunction and prosecuting the offender.  Enforcement notices must be served within 12 months from the date the works completed. Injunctions are rarely used by local authorities due to the cost and time involved, however, an application may be made by anyone at any time as there is no time limit.

Options available when approval was not obtained

There are 3 main options for a seller if building regulations approval has not been obtained:

  1. Regularisation certificate: The seller can apply for a regularisation certificate for building works carried out on or after 11 November 1985, which required building regulations approval at the time. The seller runs the risk of the local authority requiring remedial works to be carried out so that the works comply with the regulations, thereby causing potential delays.
  2. Indemnity insurance policy: The cover provided is for risk of enforcement action being taken by the local authority and covers the legal cost of any defending enforcement action. This policy is only available if the local authority has not been made aware that building regulations approval was not obtained and can be used where approval has not been obtained on completion of works carried out under the CPS.  This is normally the quickest route and the cost of the policy is usually covered by the seller.
  3. Limitation period: If the work was carried out more than 12 months ago, a seller could state that the enforcement period has passed, so the local authority can take no enforcement action.  Even if the period for enforcement has passed, however, an injunction is not restricted to any time limits, so this option is at the buyer’s discretion - and if the buyer and their mortgage lender are happy to proceed on this basis.

Here at Napthens, our conveyancing team discuss all options with the seller.  Very often the decision will be effected by the purchaser, who may insist on a certain course of action in order to protect their future interests.

As always, if you have any questions on this issue do please get in touch with a member of the team.

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