BUILT ENVIRONMENT JOURNAL

An A–Z of legal and regulatory compliance for APC

Given the volume of statute and rules that apply in the UK, the Legal/regulatory compliance competency may seem daunting – but the third of Built Environment Journal's APC A–Z articles can help

Author:

  • Jen Lemen FRICS

28 March 2023

Old Bailey building

'All aspects of day-to-day functions associated with property management' are covered by the Legal/regulatory compliance competency, according to the APC pathway guide for building surveying. This means candidates will need to understand the legislation and regulation that applies to 'works, health and safety, landlord and tenant relationships, and service charges' among other areas.

To give you an idea of the scope of the knowledge required, all the following topics will be essential. While these are typical for a building surveyor practising in England or Wales, there will be corresponding equivalents in other jurisdictions.

Asbestos: a hazardous material that is harmful to health, every form of asbestos was finally banned in all building work in 1999. Regulation 4 of the Control of Asbestos Regulations 2012 imposes a legal duty to manage the substance if it is present or presumed to be present. A substantial breach of the regulations can lead to an unlimited fine and up to two years’ imprisonment.

Building Regulations: the Building Regulations 2010 provide minimum standards for the design, construction and alteration of buildings. They are supported by a suite of approved documents providing detailed practical guidance on compliance. Note that the regulations are not the same as planning consent, which may also be required for a project.

The Construction (Design & Management) Regulations 2015 (CDM 2015): these regulations aim to promote high standards of health and safety in the construction industry. They apply to all building and construction work and allocate defined roles to various parties, including the client, principal designer, designer, principal contractor, contractors and workers.

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Dilapidations: when a property is let, the lease will typically place repair and maintenance obligations on both parties. Where these obligations are not met during or at the end of the lease term, typically by the tenant, then the landlord can pursue a dilapidations claim. The Pre-Action Protocol for Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy – more concisely known as the Dilapidations Protocol – that regulates such claims is part of the Civil Procedure Rules, and must be followed by the parties when a claim is made. There is a separate Pre-Action Protocol for Housing Conditions Claims, formerly the Pre-Action Protocol for Housing Disrepair Cases, which relates to occupier claims relating to housing condition.

Equality Act 2010: this replaced the Disability Discrimination Acts of 1995 and 2005 to provide a single piece of legislation protecting people from discrimination in the workplace and wider society. The key elements that building surveyors need to know about are reasonable adjustments for occupants, and the protected characteristics of age, disability, gender reassignment, marriage or civil partnership status, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Fire Safety Act 2021: part of wider UK government building and fire safety reforms following the Grenfell Tower fire in 2017, this amends the Regulatory Reform (Fire Safety) Order 2005. It requires those who are defined as responsible persons to assess, manage and reduce fire risk associated with certain types of building, essentially blocks of flats in multiple occupancy. Compliance is demonstrated by observing BSI's PAS 9980: 2022 Fire Risk Appraisal external wall construction and cladding of existing blocks of flats. Code of practice and commissioning a fire risk appraisal of external walls.

Gas Safety (Installation and Use) Regulations 1998: all rented residential accommodation must be subject to an annual gas safety check, under regulation 36 (1). If issues are identified then these must be remedied promptly, and any unsafe appliances removed from use immediately.

Health and Safety at Work etc. Act 1974: this is the primary legislation relating to workplace health and safety, placing a duty of care on employers for their employees. Employees also have a duty of care towards colleagues, clients and contractors. Risk assessment is a key part of complying with the 1974 Act, and all building surveyors must assess this risk before they visit any site or workplace.

Instruments: a statutory instrument is the most common form of secondary legislation, meaning that Parliament passes a framework act under which delegated or secondary legislation is subsequently passed. There are many examples of statutory instrument in the field of planning, for instance, including the Town and Country Planning (Use Classes) Order 1987 and Planning (Listed Buildings and Conservation Areas) Regulations 1990.

J: Approved Document J covers combustion appliances and fuel storage systems, and was updated in October in relation to carbon monoxide alarms and requirement J3, which states that 'where a fixed combustion appliance is provided, appropriate provision shall be made to detect and give warning of the release of carbon monoxide'. In rented residential property, alarms are now required in any room with a fuel-burning appliance, and landlords must also take action if a tenant reports a faulty alarm.

K: Approved Document K covers protection for individuals from falling over an edge or tripping over a building feature, as well as from collision and impact. It provides guidance on the design of staircases, ladders, ramps, guarding and vehicle barriers, and so also relates to the Design and specification competency for building surveyors.

Listed buildings: the Planning (Listed Buildings and Conservation Areas) Act 1990 protects buildings of historical, heritage or architectural importance. There are three grades of listing in England and Wales, with grade I being the highest, followed by grade II* and grade II. Listed building consent is required for any works to these properties, including demolition, alteration and extension.

Management of Health and Safety at Work Regulations 1999: these regulations set further obligations on the health and safety of employees that employers must meet. Examples include portable appliance testing and risk assessment for specific employees, such as new or expectant mothers and young people.

Negligence: surveyors have a duty of care towards their clients in contract, and in tort or negligence. Professional negligence occurs where a surveyor fails to perform their duties to the required standard, namely with reasonable care or skill, or they breach their duty of care. Surveyors are required by RICS to have professional indemnity insurance in the event of a negligence claim.

Occupiers' Liability Acts 1957 and 1984: occupiers have a duty of care to visitors and to trespassers on their premises under the 1957 and 1984 Acts respectively, although the duty of care owed to the former is higher than that to the latter. Surveyors managing premises must be aware of the actions they should take to manage this risk for their clients.

'Surveyors have a duty of care towards their clients in contract, and in tort or negligence'

Party Wall etc. Act 1996: this legislation helps to resolve disputes relating to excavations or works caried out to a boundary wall, party wall, party structure or boundary structure. Notice of the intended work must be given to the adjoining owner or owners, leading to agreement, changes to the proposed works or a dispute that is then resolved by an appointed surveyor or surveyors.

Q: class Q is a kind of permitted development where full planning consent is not required – although prior approval notification may be – and which allows the conversion of agricultural buildings into dwellinghouses. There are certain conditions or limitations, however; for instance, the right does not apply to Sites of Special Scientific Interest. 

Reinstatement cost assessment: these are carried out by building surveyors to ensure that buildings are insured adequately in the event of a fire or other covered risk. The assessment usually calculates the cost to rebuild the structure and provides a day-one figure for declared value – that is, for effectively rebuilding the property as it was on its first day in use. RICS provides comprehensive guidance on this in the current edition of Reinstatement cost assessment of buildings.

Street: in Street v Mountford [1985] UKHL 4, it was stated that the 'manufacture of five-pronged implement for manual digging results in a fork even if the manufacturer ... insists that [they] intended to make and has made a spade'. This means that, as far as property is concerned, a lease is also a lease if the basic requirements are met, even if it is called a licence on the front page. These requirements are, namely, that a lease grants exclusive occupation, incorporates payment of a rent and is for a specified term.

Tenants: there is a significant amount of legislation that affects commercial property tenants. One example is the Landlord and Tenant Act 1954, which relates to security of tenure for business tenancies; meanwhile, section 18 of the Landlord and Tenant Act 1927 limits a landlord’s damages for a tenant’s breach of a repairing covenant.

UK: it is key to know what legislation and regulations apply in your jurisdiction, as this may differ depending on whether you are in England, Wales or Scotland. For example, the Dilapidations Protocol does not apply in Scotland, while Scottish law also introduces the concept of extraordinary repairs that are not anticipated and are outside the control of both parties, which does not apply in England.

VAT: building surveyors need to know whether and when VAT applies to their work. In terms of dilapidations claims, HMRC clarified the position in 2022 when it stated that dilapidation payments are outside the scope of VAT and are not to be treated as further consideration for the supply of a lease. Surveyors also need to be aware if a building owner has opted for VAT on the sale and rent of the property, in addition to the VAT position on any construction works; for example, a residential building when first constructed is zero-rated for VAT purposes.

Water Supply (Water Fittings) Regulations 1999: understanding these regulations is essential to avert the risk of contaminating water fittings or water sources in buildings. A key example is preventing tubs, air conditioning and evaporative condensers. Legionnaire’s disease, which is caused by legionella bacteria that can grow in water installations such as hot tubs, air conditioning and evaporative condensers. 

'Building surveyors need to know whether and when VAT applies to their work'

X-rays: building surveyors need to know about legislation and regulations specific to their area of practice, which may be very specific. For example, surveyors working in healthcare or hospital buildings may need to be aware of the Ionising Radiation (Medical Exposure) Regulations 2017. If inspecting or working in X-ray rooms, they will need to undertake dedicated risk assessment and be aware of relevant legislation and risks. The same applies to other specialist or niche areas of practice.

Yearly: statutory compliance is something that needs to be reviewed regularly by surveyors, and in most cases should be checked once a year. This could include annual gas and electrical safety checks, risk assessments and working at height assessments. Keeping accurate records and updating them when circumstances change is also essential.

Zero carbon: this is when there are no carbon emissions associated with a product or a service; this differs from net-zero carbon, when any emissions are balanced by removing carbon from the atmosphere. There is considerable legislation seeking to reduce carbon emissions to meet the UK government's 2050 net-zero target, such as Part L of the Building Regulations and the Domestic Minimum Energy Efficiency Standard.

 

Jen Lemen FRICS is a co-founder and partner at Property Elite
Contact Jen: Email

Related competencies include: Health and safety, Legal/regulatory compliance

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