The next item of business is stage 3 proceedings on the Buildings (Recovery of Expenses) (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.
Section 1—Expenses recoverable using charging orders
14:30
Amendment 1, in the name of the minister, is grouped with amendments 2, 3 and 5.
I will outline the rationale behind amendments 1, 2, 3 and 5.
At stage 2, the application of the bill was widened beyond defective and dangerous buildings, allowing a local authority to make a charging order in relation to its other enforcement powers under sections 25 to 27 of the Building (Scotland) Act 2003. Those powers cover building regulations compliance notices under section 25; continuing requirement enforcement notices under section 26; and building warrant enforcement notices under section 27.
When a local authority takes enforcement action under sections 25 to 30 of the 2003 act, it can recover its reasonable expenses from the owner of the building. The exception to that is where it has served a building warrant enforcement notice under section 27, in situations in which work is being done without a building warrant or is not being done in accordance with the technical aspects of building regulations. In such a case, the local authority would serve a section 27 notice on the “relevant person”. Usually, the relevant person is the owner of the building, although that might not always be the case. For example, the relevant person could be a tenant who is doing the work themselves or employing a builder to carry out the work for them. In a situation in which the owner was not responsible for having the work carried out, it would be unreasonable for any liability of the tenant to be attached to the title of the building.
Amendments 1 and 2 expand new section 46B(1)(zc) of the 2003 act and clarify that the qualifying expenses recoverable by a local authority are only those expenses that relate to a building warrant enforcement notice that has been served on the owner of the building. The effect of the amendments is that the local authority can make a charging order under new section 46A only where the person liable for expenses in relation to enforcement under section 27 is the owner of the building.
Amendments 3 and 5 are consequential on amendments 1 and 2. They remove subsections (4) and (5) of new section 46C and subsections (5) and (6) of new section 46D—I hope that members are getting all this. Those subsections make provision for references to an “owner” that occur earlier in the sections to be read as references to a “relevant person” other than an owner. The four subsections are no longer required, as expenses under section 27(7) are only qualifying expenses and hence recoverable under a charging order where the original building warrant enforcement notice was served on the owner of the building.
I move amendment 1.
The bill has always focused on owners of buildings. This package of amendments ensures that the local authority cannot make a charging order under new section 46A of the 2003 act if the person liable for expenses relating to enforcement under section 27 is not the building owner—for example, if they are a tenant. The amendments also clarify that qualifying expenses for a building warrant enforcement notice under section 27 are limited to when the local authority has served a notice on the owner of the building. In essence, the amendments are of a tidying-up nature, following the extension of the bill to section 27 of the 2003 act. I therefore support the refinement of the bill.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Derek Mackay]—and agreed to.
Amendment 4, in the name of the minister, is grouped with amendments 9 and 10.
Amendments 4, 9 and 10 can be considered to be minor technical or drafting amendments.
The bill provides that, where a charging order has been registered, the local authority must register the discharge of the order as soon as reasonably practicable after the charging order has been discharged.
Amendment 10 makes it clear that the discharge of a charging order must be registered by a local authority when it has received either the full repayable amount or any agreed lower amount that redeems the repayable amount.
Amendment 4 removes new section 46D(3), which is no longer required, as a consequence of amendment 10.
Amendment 9 simply changes the term “the charging order” to “a charging order” in section 46E(5).
I move amendment 4.
These are minor and technical amendments that involve some repositioning of provisions that deal with registering a charging order and a discharge. They seek to ensure further clarity and consistency in the application of the bill, and we are therefore content to support them.
Amendment 4 agreed to.
Amendment 5 moved—[Derek Mackay]—and agreed to.
Amendment 6, in the name of the minister, is grouped with amendments 11 to 13.
This group of amendments concern the appeal and registration of a charging order.
The bill adds charging orders to the list of matters that are appealable under section 47 of the Building (Scotland) Act 2003. Where a local authority makes a charging order, the owner has 21 days to appeal, by summary application to the sheriff. As a result of section 47(4) of the 2003 act, as amended by the bill, the charging order does not take effect until either the 21-day period has passed without an appeal being made, or, where an appeal has been made, the appeal has been determined or withdrawn.
Concerns have been raised that an owner might use the appeal mechanism as a delaying tactic while they try to change the ownership of the building. It is therefore important that a charging order can be registered in the appropriate land register as soon as possible.
At stage 2, the bill was amended to introduce provisions for future owners to become severally liable with the former owner—those amendments introduced new sections 46F and 46G.
Amendments 11 and 13 are technical amendments, concerning subsections (3) and (4) of section 47 of the 2003 act.
Amendment 11 amends subsection (3), which creates a right of appeal against a charging order, and clarifies that any appeal must be made within 21 days of the date of the charging order.
Amendment 13 clarifies that a charging order, as with the other appealable matters in the 2003 act, is of no effect until either the appeal period has passed without one being made, or any appeal has been determined or withdrawn.
Amendment 6 makes it clear that the local authority can register the charging order as soon as it has made it. The local authority does not have to wait until after the 21-day appeal period has passed or any appeal has been determined or withdrawn.
New subsection (3A) of section 47 of the 2003 act makes provision limiting the questions that may be raised in appeals in relation to charging orders. The effect of amendment 12 is that the correct subsection that creates the right of appeal is referred to in new subsection (3A).
I move amendment 6.
These amendments seek to further refine the appeals system to ensure that it cannot be used to frustrate the intended operation of the bill. They also clarify that local authorities do not need to wait until after the appeal period has elapsed to register a discharge.
The amendments are in line with my policy on appeals and, as such, I support them.
Amendment 6 agreed to.
Amendment 7, in the name of the minister, is grouped with amendment 8.
Amendments 7 and 8, which comprise the last group, result from an amendment to the bill at stage 2.
New sections 46F and 46G of the 2003 act were added at stage 2 and make the new owner and former owner severally liable for the local authority’s expenses when the building changes ownership.
The first of those sections, new section 46F, provides for the liability of the new owner. The second, new section 46G, provides for the continued liability of the former owner.
Amendment 7 makes it clear, in new section 46E(3), that although a registered charging order is enforceable by the local authority against the existing owner of the charged building, that is subject to new section 46F, which was inserted at stage 2.
The effect of new section 46F is that, where a building changes hands, in certain circumstances, a new owner is severally liable with any former owner of the building. That maintains safeguards for new owners who have acquired rights in relation to a charged building within 14 days of the registration of a charging order. New section 46E(4) also makes provision for certain circumstances in which a charging order is not enforceable. Amendment 8 removes new section 46E(4), which is no longer required due to the insertion of new section 46F at stage 2.
I move amendment 7.
As the minister explained, the bill was amended at stage 2 to clarify liability on the sale or purchase of a property where a charging order has been registered. Amendments 7 and 8 will ensure accurate linkage between new sections 46F and 46G and the pre-existing sections by adding a necessary cross-reference and removing an unnecessary provision. As they are consequential amendments, I am content to support them.
Amendment 7 agreed to.
Amendments 8 to 13 moved—[Derek Mackay]—and agreed to.
That ends consideration of amendments.