Enforcement of BRegs e.g. FENSA -- Avoiding Bureaucratic Costs

[TerryE]

We are are just about to exchange on our current house and have got caught by some bureaucracy over the "Fenestration National Self Assessment" scheme.

 

In a nutshell, the 2000 BRegs were tightened in Apr 2002 when the replacement of windows became a controlled activity, which either had to but done by a recognised competent person or be subject to inspection by an authorised inspector to ensure that said works complied with BRegs.  In this case my slater with my help replaced some crappy old roof lights in early 2003 with (then) top of the range Velux windows.  They've performed faultlessly in the 15 years since.

 

In the case of replacement windows and doors, the work needs to be covered by installation by a FENSA member, or you need to base BInsp sign-off.  

 

My reading is that in the case of all building work, the LA has 12 months of completion of the work to serve the notice or it it is time-barred (Section 36 of the Building Act 1984) , however, in the case where the work does not comply with the regulations then the LA may still obtain an injunction to force the owner to remedy the breach in regulation.  So as long as the work itself complies with regulations then after this 12 month grace period, the authority in effect has no powers.  Hence LAs only use such injunctions sparingly where there are clear safety issues.

 

Likewise for building work to a single dwelling which would normally fall within LA planning approval, there is a similar 4 year time-bar (Section 171B of the Town and Country Planning Act 1990), so even if you materially change the external appearance of a building (e.g. our local authority interprets any change to fenestration of the principle elevation of a property as material) and no one flags this to the LA by objecting then they have no enforcement mechanisms available.  (I am talking about sensible changes done openly;  there have been a couple of topics on the forum, where people have tried to abuse this section and failed -- the farmer's 'castle' hidden behind a bale-wall comes to mind.)    

 

So if you've or your builder have made well built changes to your house, then after four years any debate over whether planning or build regulation consent should or should not have been applied for and approval sought are moot.

 

However, the catch-22 comes when you come to sell the property, because the buyer almost invariably needs a mortgage, and the mortgage providers are very risk adverse and require any such work to be indemnified.  So in my case and my replacement windows, I am now spending £169 to get the indemnity to cover the 4 replacement Velux windows that  were installed 15 years ago to the then BRegs to cover the possibility that the LA might seek to raise an injunction on the work.

 

More and more work that would fall into the normal self-build scope seems to be coming into this "controlled activity" scope, so compliance with the regulations isn't the issue; you either need to subcontract to a firm which is a member of the appropriate closed shop, or you need to pay for a BInsp to sign off your work. It seems to me that for anyone planning to improve their home, then the obvious course of action is to sweep the entire scope into a single building control application and in essence pay once for an inspector to inspect and to sign off the work.

 

Footnote:  I will update this synopsis in the light of feedback from other members (for example I am sure that @Temp and @JSHarris can provide their insight / corrections to this.) 

[Onoff]

In a thread elsewhere I've bemoaned about my DG windows and how badly they were installed. This was by an approved installer. Quite a big name where we are tbh. Just banged in the hole with damn great gaps. No foam just upvc trim super glued. Draughty as Hell.

 

Just 'cos they've paid into a scam doesn't mean they're good!

[ProDave]

This is applicable to home improvements only. In the case of a self built, you WILL have building control sign off, so any tom dick or harry (or even Dave) can fit the windows and BC will sign it all off at the end/

 

Like @Onoff just because you have paid in to be a member of a competent person scheme does NOT mean you are a good tradesman. We see this regularly with "approved" electricians.

 

Lenders do seem very risk averse. I was reading on another forum of a case where the mortgage application had stalled because there was a 30 year old extension that they could not find any paperwork for, WELL beyond any enforcement period for anything.  Anyone sensible would just look at the survey which did not indicate any obvious problems with the extension and accept it.

[Temp]

I think lenders are paranoid because of the sub prime crash. For years they bought and sold each other bundles of mortgages that were supposedly AAA rated but which turned out to be anything but. If they only lend on properties that are squeaky clean they can put that converted AAA wrapper around it/them when they sell them on.

[Jeremy Harris]

I've heard of several tales recently where sellers have had to rush around spending money to get proof that the house they are selling is compliant with the building regs that applied at the time it was built.  It's one reason I ripped out all my workshop wiring at the old house a couple of weeks ago and refitted the single socket, light switch and pendant light that was in there when we bought the house.

 

I've also carefully collected together all the paperwork on things like the new windows and doors we had fitted years ago, the new gas boiler and all it's annual service chits, the paperwork for the new flat roof we had fitted a couple of years ago, and the couple of wiring jobs where I have a chit, ready to sell the house.  I've also heard that there's now a pretty good chance that a lender will want to see an up to date electrical installation cert, as the house wiring is over 25 years old, so I'm arranging to get one of those as well, just in case.  I've already tested every circuit so with luck the official EIC will be quick and easy.   The last thing I want is last minute hassle with the sale because a lender throws up objections!

[ProDave]

It is complete nonsense, not helped by the surveyors.

 

At least in our case we still have the building control completion certificate and also the nhbc warranty certificate, though that has now expired so of no value other than to prove they were happy with it when built.  And no alterations have been done since. Honest.

[Triassic]

When I sold a renovation property I couldn’t find the Fensa certificate, I recall that £20 for indemnity insurance made the problem go away.

[TerryE]

5 hours ago, ProDave said:

This is applicable to home improvements only. In the case of a self built, you WILL have building control sign off, so any tom dick or harry (or even Dave) can fit the windows and BC will sign it all off at the end.

 

Yes this doesn't apply to new builds, but there are members here who are doing (or have done) refurbishment and extensions to existing properties, and at some point they will want to sell the house.  This is also the case for new-builders like us who at some point want to sell their old house.  This bureaucracy is a total PITA, because as I said it doesn't really add value for the vendor or the seller, IMO.

 

As to Jeremy's point, we just bit the bullet, and got our electrician do a full ElecSa Electrical Installation Condition Report.  It took him about 6 hours barbecue we have quite a few circuits and a lot of sockets in the house.  Luckily most of the renovation dated back over 20 years, and is still clearly in good condition so the buyer is very relaxed about this.  But £169 for indemnity for four good quality Velux fitted 14 years ago, grrrhhh!!

[Stones]

 

20 hours ago, TerryE said:

 

Likewise for building work to a single dwelling which would normally fall within LA planning approval, there is a similar 4 year time-bar (Section 171B of the Town and Country Planning Act 1990), so even if you materially change the external appearance of a building (e.g. our local authority interprets any change to fenestration of the principle elevation of a property as material) and no one flags this to the LA by objecting then they have no enforcement mechanisms available.  (I am talking about sensible changes done openly;  there have been a couple of topics on the forum, where people have tried to abuse this section and failed -- the farmer's 'castle' hidden behind a bale-wall comes to mind.)    

 

 

Worth bearing in mind that although immune from enforcement action, the development, whatever that may be, would still be unauthorised.

 

The potential then exists that the unauthorised development may have an impact on the way any future application for planning permission is determined. 

Edited December 4, 2017 by Stones

[ProDave]

10 minutes ago, Stones said:

 

 

Worth bearing in mind that although immune from enforcement action, the development, whatever that may be, would still be unauthorised.

 

The potential then exists that the unauthorised development may have an impact on the way any future application for planning permission is determined. 

Would / could it still have an impact on future planning applications if you first get a certificate of lawful development?

[Roger440]

On the upside, when you have a collection of certificates, including the one for my central heating (no, not that one Nick) which clearly doesn't compy with the regs, when i modify it,  no one will ever know. Just produce the cert. The reality is, it will be far more compliant when ive finished with it.  

 

Likewise, i "could" install my soakaway and claim it was there all along. What was signed off by the BCO is clearly non-compliant. But signed off as part of the extension. Clearly he never looked at it, at any point! Clearly from the Stevie Wonder school of building inspection.

[Jeremy Harris]

The bottom line with a lot of this lender paranoia is that they are more focussed on having nice bits of paper than there are in whether the house is really sound. 

 

Valuation surveys are a bit of a joke (we've just had one on our old house) and consisted of a bloke walking around for ten minutes, making some notes on a form.  The closest he got to actually inspecting anything was to poke his head through the loft hatch  and shine a torch around.  The daft thing is that he wouldn't use the loft ladder, or the light in the loft, but insisted that for H&S reasons he had to use his small telescoping ladder and a small maglite torch.

 

I'd expected an examination of the roof, the new flat roof we laid last year, checks on loft insulation, state of the roof timbers etc, but it was clear that he was more interested in the folder of bits of paper than the house itself.

[ProDave]

7 hours ago, JSHarris said:

 The daft thing is that he wouldn't use the loft ladder, or the light in the loft, but insisted that for H&S reasons he had to use his small telescoping ladder and a small maglite torch.

Those things terrify me.  If just one of the 2 per rung locking devices is not latched properly, or fails, the whole lot could collapse. The very last sort of ladder I would ever trust my life to, I think they are an accident waiting to happen.

 

Give me the loft ladder any time.

[TerryE]

I think that you could describe a lot of us as a bit anal when it comes to the quality of our work and also what we expect of trades that do work for us.  It is also a matter of pride that what we do is of the best quality and complies with the current regulations.  In my mind, this is nothing about quality and everything about petty bureaucracy and kick-backs. 

 

Take this indemnity crap.  14 years ago, I replaced 4 windows with very good quality and (at the time) high thermal-spec Velux.  There's isn't any debate about the quality of the installation and the buyer has absolutely no problems, but I have to pay £169 for the policy and another £60 for my solicitor arranging it, for an indemnity against something that won't realistically occur.  The alternative is that I risk a delay to my exchange timescale.  As I said, CRAP.

[ProDave]

Off topic perhaps.

 

But wasn't this change to window installs supposed to mean they comply with building regs?

 

The old bungallow that I am working on this week during it's renovation is having new windows fitted by Everest.  The living room windows only have opening fanlights.  I thought it was now a requirement to have at least one means of escape window?

[Ferdinand]

1 hour ago, ProDave said:

Off topic perhaps.

 

But wasn't this change to window installs supposed to mean they comply with building regs?

 

The old bungallow that I am working on this week during it's renovation is having new windows fitted by Everest.  The living room windows only have opening fanlights.  I thought it was now a requirement to have at least one means of escape window?

 

I think they are not required for rooms opening directly onto a hall which leads straight to an external door.

 

Which was a surprise when I looked it up - on the LBB I have one in every bedroom, and the installer fitted handles without keys. Not convinced that that was correct.

 

[TerryE]

1 hour ago, ProDave said:

But wasn't this change to window installs supposed to mean they comply with building regs?

 

Yes, and in 2003 one of the few actual Regs which apply to fenestration was the issue of escape which does not apply in this case as 2 were roof lights that were approx 12ft above an adjacent door into the garden; the other two were in an open mezzanine 5m from the door.  No secondary escape requirement even in 2003.  The other was the then requirement for insulation which the Velux exceeded.  My point wasn't that I could ignore regulations, it was that I shouldn't to pay the premium for a FENSA installer to install them, or pay indemnity 14 years after they were installed and I hadn't got a chitty from some BI to say that they we inspected at the time.

[Stones]

On 12/4/2017 at 19:14, ProDave said:

Would / could it still have an impact on future planning applications if you first get a certificate of lawful development?

 

Obtaining a CLEUD would regularise the breach and effectively grant that development the same status as if it had planning permission.  

[Jeremy Harris]

1 hour ago, Ferdinand said:

 

I think they are not required for rooms opening directly onto a hall which leads straight to an external door.

 

Which was a surprise when I looked it up - on the LBB I have one in every bedroom, and the installer fitted handles without keys. Not convinced that that was correct.

 

 

 

Spot on.  I went through this process when designing our house, as I had to work around not having large openings on the North wall.  My study gets around not needing an escape window just a narrow, high level, clerestory window to provide some North light, just because I arranged it so that the door opened on to the hall.  My wife's study is accessed from the living room, so that has a French window leading to the patio.  Upstairs you need escape windows, with no locks, from all habitable rooms, as the hall/staircase isn't considered a safe fire escape route from upper floors, unless it's fully enclosed and fire protected.

[TerryE]

On 05/12/2017 at 21:31, Stones said:

Obtaining a CLEUD would regularise the breach and effectively grant that development the same status as if it had planning permission

 

I think that the main learning for me and others is that it pays to be proactive if you are planning to sell your house and your documentation isn't 100% watertight, whether because of your actions or a previous occupant's.  So in terms of changes that might potentially have required planning permission, a Certificate of Lawful Existing Use or Development (CLEUD) as Jason says will nip a whole class of complaints in the bug.   (Here is one of many explanations on the web on CLEUDs.)

 

As fas as the indemnities for work that could have potentially has required BC inspection, then it is better for you to shop around for a few quotes and pick the cheapest, rather than having to accept the solicitors choice because your are up to the wire trying to exchange, and then have to pay a handling fee on top.

 

To be honest another aspect is to say as little to the vendors surveyor as possible.  If they miss something then that's their affair; if they make a false conclusion then you can always challenge this with the facts.

 

The other advantage of being proactive is that you control the "regularisation" and you can do this off the critical path, so avoid additional stress during the run up to exchange.

 

However all of this is moot for us now as we have exchanged on our old house with a view to completing on the 19th.

[AliG]

My thread followed what a nightmare this issue was for us. We took months to get building warrants signed off when selling out house and only got it done two weeks before completion.

 

Basically the solicitor wanted all the drawings lodged with building control for any work done on the house along with the completion certificates. These will be lodged with the deeds to the house. I did not have all the drawings, in many cases I had never even seen them, and I had to apply to the council records keeping for copies.

 

I then had to get all the little jobs the builder had not finished signed off. What I found was that everything was safe and working, but if you do not comply with the full letter of the law then the bureaucracy gets you. For example should a kitchen have a smoke or a heat detector. I had three different inspectors each produce totally different lists of things they wanted done to be compliant.

 

I wish I had known all of this before starting any work This was the first time I had owned a house where I had extended it or done any other work requiring approval. If you do this work it will make life a lot easier when you sell the house if you get all the paperwork and signs offs at the time the work is done and keep it.

 

Because of the ever increasing level of electrical regulation I ended up having to replace my CU at a cost of almost £1000 to get a sign off of previous done electrical work. You basically end up with a creeping need to comply with current regulations irrespective of the age of the house.

 

 

[ProDave]

3 minutes ago, AliG said:

Because of the ever increasing level of electrical regulation I ended up having to replace my CU at a cost of almost £1000 to get a sign off of previous done electrical work. You basically end up with a creeping need to comply with current regulations irrespective of the age of the house.

 

 

£1000 for a CU change?  Something is not right.

 

Unless there's something unusual (like an all rcbo board) then the CU will cost about £100 and will take a day to swap and test everything.  So either your electrician is on a damned high hourly rate, or he spent a week doing alterations and remedial work to bring it up to standard.

 

There is no requirement to upgrade circuits you have not made alterations to.

 

At the end of the day, all building control need is an EIC. I doubt they ever read it or would understand what it said if they did read it. It is just  bit of paper to file away to show the electrics have been determined by someone to be safe.

[AliG]

It was an RCBO board yes. £630 plus VAT for a 19 way board

[curlewhouse]

Yes, when we came to sell our old house I took out the wiring etc. for the outdoor pond, workshop etc. which I had done for these very reasons.  All was within the regs of course (I grew up with an electrician father and he even to this day keeps a hard copy of the latest part P in the house long after he has retired) but I wasn't going to pay up for an inspection or for some sparky to claim he needed to do work on it. Their solicitor still tried to whinge about the fact I'd replaced the double glazing on the porch myself so had no FENSA certificate - so I said fine, don't buy the bloody house then , no skin off my nose . I asked them what was next, a certificate that the carpet was laid by a carpet fitter, a fishmongers certificate for the fish in garden pond? Its a racket I wasn't going to entertain.   At that point they decided that I "must have only replaced the glazing units themselves" and not the  whole things, frame and all,  and thus no need for a FENSA cert. and went ahead with the purchase.    It is a bit of a joke anyway when you look at the reviews of some of the major window fitting firms, all of who will self issue a FENSA certificate!