When Building Regulations Approval Has Not Been Obtained
What are the Risks of Not Having Building Regulations Approval?
Where there has been a failure to obtain building regulations approval for some work the local authority are entitled to inspect and if the work does not comply with regulations, serve a notice requiring the owner of the property for the time being (which may not be the same person as did or commissioned the work) to put it right or, if that would not be possible, revert the property to its former state. This notice is known as a “section 36 notice”, because the power to issue it granted by section 36 of the Building Act 1984.
Failure to comply with a section 36 notice is an offence and could lead to the property being prosecuted, as well as paying the local authority’s costs of correcting the breach.
Depending on the nature of the work it may be that a full inspection can be difficult once it is fully completed. For an extension for example the inspector would have wanted to inspect at the foundation stage and at various subsequent stages, and he is entitled to take whatever is necessary to be fully satisfied that the work meets the standards set by the regulations.
It is possible that, if some structural work has been carried out without building regulations approval and a full structural survey is not carried out on purchase, a buildings insurance claim relating to the offending work may be invalidated as a result.
Time Limits for the Local Authority to Take Enforcement Action for Lack of Building Regulations Approval
Under s36 of the Building Act 1984 the local authority must serve the notice within 12 months of completion of the work or else it is time-barred. It may still however obtain an injunction to force the owner to remedy the breach. There is no time-limit on that power.
Lack of Building Regulations Approval Indemnity Insurance
The most common solution to a situation where building regulations approval should have been obtained but was not is to obtain a legal indemnity insurance policy. This is a type of insurance policy designed specifically to provide cover against legal risks and is often used as an alternative to actually correcting the problem, which can often be much more expensive and time consuming. The premium, which depending on the risk in question might range from £30 up to as much as perhaps £500, is payable just once and the cover usually lasts for the life of the property and automatically transfers to successors if the property is transferred. It will generally also protect any mortgagee.
Lack of building regulations approval indemnity insurance will usually cost around £40 though it will vary from insurer to insurer. In the event that the local authority takes enforcement action in an attempt to force the owner of a property to restore it to its former condition or take some action in order to remedy a breach of building regulations a claim can be made on the policy in respect of the costs of defending or complying with the action and also any resulting loss of value to the property (for example if an extension is ordered to be removed).
Certain statements will need to be made to the insurer when the policy is obtained and if they are made falsely then the policy will be invalidated. It will usually be necessary for example to confirm that the work in question was completed more 12 months previously (or 4 years if the work was the construction of the property itself) and that the property has for at least the last 12 months been used as a residential dwelling.
It is also important that there has been no contact with or by the local authority in respect of the work within the past 3 months or longer. Once the cover is in place the local authority must not be contacted by or on behalf of the policyholder otherwise it will be invalidated. Finally, a clear survey result will need to be obtained. If the survey contains adverse comments in relation to the works the policy will be invalidated.
The cover will need to be arranged by a solicitor or licensed conveyancer as the insurers will not deal with a lay person. It can usually be arranged online very quickly and will generally be acceptable to mortgage lenders, making it the simplest and almost certainly the cheapest solution. It is generally accepted that the seller will bear the cost of the premium, which will be paid from the proceeds of sale, though there is nothing to prevent the purchaser paying.
Indemnity insurance is not appropriate where the purchaser intends to carry out works following completion for which building regulations approval will be required as they will need to approach the local authority about the new works, which would be likely to bring the insured works to their attention, thereby invalidating the policy.
Retrospective Building Regulations Approval Applications
If indemnity insurance is not appropriate or cannot be obtained then it is possible to make a retrospective application for building regulations approval. Depending on the nature of the work this can be risky. Any work has the potential not to comply with the regulations and of course once this is brought to the attention of building control they may order that it be put right, but if the work is for example the construction of a large extension, or even the property itself, then it may not be possible for the building inspector to be satisfied without carrying out expensive and intrusive investigations. For example he will want to check that the foundations are satisfactory which may mean drilling into the floor, and that the supporting walls are ok which may mean removing plaster.
Once the building inspector is satisfied he will issue a regularisation certificate (the term used to describe a retrospective completion certificate). There will be an administrative fee payable before the certificate is issued.
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