Insight

The Consultation of New Scottish Building & Compliance Measures in 2022: Compliance Plan Manager Appointment?

Published

22 February 2022

Read time

5 minutes

As noted in the 2018 Compliance and Enforcement review panel report by Professor John Cole CBE, the Scottish Government has a responsibility

“to ensure that weaknesses in the current implementation of the Building Standards system in Scotland in relation to failures to enforce procedural and site compliance are properly addressed[1]”.

With this in mind - and adopting a different approach from the English provisions of the Building Safety - the Building Standards Division (BSD) announced at the end of 2021 that a national plan was being developed to ensure that from design to completion, there is total compliance with building regulations in Scotland. 

What changes can we expect?

The Compliance Plan Working Group was set up to assist the Scottish Government in identifying how best to take this forward and a consultation[2] was devised to seek opinion on the development of a new Compliance Plan Manager (CPM) within the building standards system. This will apply to specific High Risk Building (HRB) types; the definition of these HRBs; the level of fines and penalties where work is non-compliant; and how compliance could be enforced.

Engagement has already begun with relevant insurance bodies in relation to the role of the CPM, and no doubt discussions around the availability of professional indemnity (PI) insurance for the professionals who will be involved. In the prevailing market conditions where PI insurers are still exercising caution and limiting capacity when underwriting existing business, negotiating cover at an affordable premium to cover liabilities arising from this new CPM role will not be without its challenges.

Responses to the consultation:

As noted above, views are sought from stakeholders regarding this review, to help ensure the health, safety and welfare of the public and also conserve energy resulting in sustainable development.

The consultation covers four main areas:

  • Creation of a new CPM oversight role on HRB types on behalf of the Relevant Person (normally the owner or developer);
  • The definition of HRBs requiring a CPM;
  • Fines and penalties; and
  • Impact assessments. 

At the time of publication, a good number of construction related professionals will likely have given their input and commentary to the 15 consultation questions[3].

As the responses to the consultation will be used to shape the final policy, input from those in the industry is crucial.

At the appropriate time, designers considering taking on this role must seek advice from their Professional Indemnity Insurance (PII) brokers.  Whilst only currently at consultation stage, much thought will have to be given to the additional duties and liabilities this role places on the professionals involved.  PII policies will generally only respond to claims arising from the insured’s professional negligence i.e. a failure to exercise reasonable skill and care.  We will watch with interest as to whether the CPM role will go a step beyond this.

Why do we need clearly defined responsibilities?

The need for more robust Compliance Plans was identified in the 2018 Compliance and Enforcement review panel report findings. It proposed changing the current process and requiring the CPM, the designer and potentially the contractor to develop the Plan. 

There was acknowledgement that for the Plan to be relied upon, it would have to be contributed to by appropriately qualified professionals with adequate Professional Indemnity (PI) Insurance.  For the PI insurance to be adequate, insurers need to be able to assess the exposure of these professionals.  The Consultation paper states that the proposed role will mean that the CPM will:

 “oversee and be responsible for ensuring the developed and agreed CP is fully discharged from building warrant pre-application discussion stage through to completion of the project[4]”

Therefore a clear framework of roles, responsibilities, duties and obligations with no room for misinterpretation must be established.

Conclusion

The role of the CPM will be a substantive technical one and those fulfilling it should have solid expertise in the design and delivery of complex work. Careful consideration must be given firstly around the capability and technical proficiency required, and also whether additional risk management procedures should be implemented by those shouldering the responsibility this CPM role will bring.

The consultation closed on 4th February with an analysis document detailing the responses to follow. We will wait to see how it all develops and sincerely hope that the comments made by Professor Cole in 2018: “the current system in Scotland has much to commend”, will still remain true throughout 2022.

How can we help?

In this article, we have examined the impacts of the BSD’s future plans and how construction professionals may need to reassess their PII cover because of it. As a PII specialist broker, we are able to offer this risk management advice and help safeguard against future threats that may arise

If you are concerned about the effects, or would like to discuss your current PII policy please get in touch.

Vivian Allison

Vivian Allison

Associate Director, Howden Financial Lines, Scotland

07596 859178

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