Building regulation (for example building standards and construction), is not expressly included in the list of devolved subject areas set out in Part 1 of Schedule 7 to the Government of Wales Act 2006 (GOWA 2006).
However there are subjects listed in Part 1 which are potentially relevant to building regulation, these include:
- paragraph 2 (Ancient monuments and historic buildings) - buildings and places of historic interest;
- paragraph 6 (Environment) - environmental protection;
- paragraph 18 (Town and country planning) - including listed buildings.
The National Assembly may therefore pass laws about building regulation which relate to these subject areas, provided none of the exceptions and exemptions from legislative competence set out in Parts 1, 2 and 3 of Schedule 7 of GOWA 2006 apply. In particular, the National Assembly does not have legislative competence to pass laws in relation to “Energy conservation, apart from the encouragement of energy efficiency otherwise than by prohibition or regulation”.
Section 1 of the Building Act 1984 recognises that energy conservation and environmental protection are not necessarily the same. In the list of purposes in section 1(1) of the Building Act 1984 for which provision in building regulations may be made, “furthering the conservation of fuel and power” and “furthering the protection or enhancement of the environment” are listed as separate purposes. The energy conservation exception may, therefore, mean that the National Assembly cannot pass laws about building control for the purpose of energy conservation.
Building Act 1984
The Building Act 1984 is the principal statute providing for the control of building throughout England and Wales. It is the source of the Welsh Ministers’ power to make building regulations. Building regulations may be made to:
- secure 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;
- further the conservation of fuel and power, the protection or enhancement of the environment and the prevention or detection of crime;
- facilitate sustainable development;
- prevent waste, undue consumption, misuse or contamination of water.
The Act provides for the supervision of plans and work by approved inspectors and local authorities.
The Act also contains provisions relating to buildings, including requirements in relation to drainage, defective premises and demolition. There are, however, aspects of building control that are outside its scope. For instance, housing legislation confers powers in respect of houses which are unfit for human habitation. The Highways Act 1980 restricts the construction of buildings over highways maintainable at the public expense.
The making of any material change in the use of a building may require planning permission in addition to any consent that may be required by or under the Building Act 1984.
Principal subordinate legislation
Building Regulations 2010 (SI 2010/2214):
- define what types of work amount to ‘building work’ and make these subject to control;
- specify what types of buildings are exempt from control;
- set out the notification procedures to follow when starting, carrying out, and completing building work; and
- set out the requirements with which the individual aspects of building design and construction must comply.
The requirements with which building work must comply address individual aspects of building design and construction ranging from structural matters, fire safety, drainage, waste disposal, energy conservation, hygiene, sound insulation, ventilation, electrical safety, access to and use of buildings.
Practical guidance on ways to comply with certain requirements in the Building Regulations 2010 is contained in a series of documents which are approved by the Welsh Ministers.
Building (Approved Inspectors etc.) Regulations 2010
Section 47 of the Building Act 1984 provides that the responsibility for inspecting plans and building work for compliance with building regulations may, at the option of the person intending to carry out the work, be given to an approved inspector instead of to the local authority. The Building (Approved Inspectors etc.) Regulations 2010 (SI 2010/2215) specify the procedures for approving inspectors.
Part 3 of these Regulations contains provisions about the supervision of building work by approved inspectors.
Part 4 of these Regulations applies the requirements of the Building Regulations 2010 relating to self-certification schemes, CO2 emission rate calculations, energy performance certificates, wholesome water consumption calculations, sound insulation testing, mechanical ventilation air flow rate testing, pressure testing and commissioning to building work which is the subject of an initial notice and is supervised by an approved inspector.
These Regulations also cover the approval of public bodies to supervise their own work, and procedural and consultation requirements where public bodies do so, including in particular the prescribed forms of, and grounds for the local authority to reject a public body's notice, a plans certificate and a final certificate.
While these Regulations were made by the Secretary of State on an England and Wales basis, the function of making these Regulations is now exercisable by the Welsh Ministers.
Devolution of executive power
The Welsh Ministers (Transfer of Functions) (No 2) Order 2009 (SI 2009/3019) provided for certain functions under the Building Act 1984 to be transferred from the Secretary of State to the Welsh Ministers. It expanded upon the previous transfer of functions exercisable under the Building Act 1984 made by the National Assembly for Wales (Transfer of Functions) Order 1999.
The primary function transferred was the power to make building regulations under section 1 of the Building Act 1984 in relation to Wales.
Functions were not transferred so far as they were exercisable in relation to an ‘excepted energy building’ as defined by the Schedule to that Order.
Under the European Communities (Designation) Order 2008 the Secretary of State is designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to the environment, but the Welsh Ministers are not. Thus secondary legislation in relation to the energy performance of buildings resulting from the EU Directive on the energy performance of buildings (recast) 2010/31/EU is made by the Secretary of State on an England and Wales basis.