The next item of business is a debate on motion S4M-10335, in the name of David Stewart, on the Buildings (Recovery of Expenses) (Scotland) Bill.
I call the cabinet secretary to signify Crown consent to the bill.
For the purposes of rule 9.11 of the standing orders, I advise Parliament that Her Majesty, having been informed of the purport of the Buildings (Recovery of Expenses) (Scotland) Bill, has consented to place her prerogative and interests, so far as they are affected by the bill, at the disposal of Parliament for the purposes of the bill.
Many thanks. Now to the debate. I call David Stewart to speak to and move motion S4M-10335. Mr Stewart, you have 10 minutes or thereby.
14:42
It is with great pleasure that I open the debate. The bill was introduced on 30 October 2013, and stage 1 concluded with a parliamentary debate on 3 April 2014. The Local Government and Regeneration Committee considered the bill at stage 2 on 4 June, and today the Parliament debates whether to pass it. It is very much my hope that members will come together to welcome the bill and support it at decision time.
When I last stood in the chamber to talk about my member’s bill, it was known as the Defective and Dangerous Buildings (Recovery of Expenses) (Scotland) Bill. A lot has changed since stage 1, including the bill’s title, but I believe that change is good. My bill now delivers a more comprehensive approach to local authority debt recovery, encompassing not just local authorities’ work in relation to defective or dangerous buildings under part 4 of the Building (Scotland) Act 2003 but their work under part 3, in relation to compliance and enforcement.
An estimated £4 million of debt has been accrued during the period for which charging orders have not been available to local authorities. As I explained in the stage 1 debate, prior to the 2003 act, local authorities relied on charging orders under the Building (Scotland) Act 1959 to tackle debt associated with dangerous buildings. However, when the 1959 act was repealed and replaced with the 2003 act, the charging order mechanism was not carried over, which left local authorities with an increasing debt burden that needs to be addressed now.
Local authority debt recovery can be problematic for myriad reasons. A couple of examples that were given in evidence to the Local Government and Regeneration Committee at stage 1 demonstrate the diverse circumstances that can be encountered.
John Delamar, from Midlothian Council, talked about the
“deterioration of a chimney stack that is directly above a neighbouring single-storey property and above a public footpath right beside a bus stop”.
Because of the danger involved, there was a requirement for the local authority
“to fix the chimney by putting up scaffolding.”
He explained that the owner on the first floor of the property with the deteriorated chimney stack was “happy to pay”, whereas the person on the ground floor was not. He said to the committee:
“We are now in difficulties because the person on the ground floor, who had a business and other property, died, unfortunately. Therefore, we can no longer pursue the costs involved under our civil debt recovery methods.”
Gillian McCarney of East Renfrewshire Council told us about an example from her area. She said:
“We have a site with an absentee owner—I believe that he lives in Antigua. The council has incurred substantial costs in keeping the building safe. We understand that the owner is in discussions with several people to buy the site, and we have to continually check to see whether it has been sold.”—[Official Report, Local Government and Regeneration Committee, 19 February 2014; c 3119.]
Both council officers noted the advantages that charging orders would have had in those situations—they would have helped them to recoup their expenses on the sale of the buildings concerned. I have no doubt that most councils will be able to recount cases in which charging orders would have made a difference.
Before I move on to discuss the main changes that were made at stage 2, I put on record my thanks to those who have helped to shape and develop the bill. In particular, I thank the Local Government and Regeneration Committee for its scrutiny of my policy, the Delegated Powers and Law Reform Committee for its continued scrutiny of the subordinate legislation powers and, of course, those who have worked diligently to support me prior to the bill’s introduction and through its parliamentary stages. I particularly thank Claire Menzies Smith from the non-Government bills unit and Neil Ross from the legal team for all the help and advice that they have provided. Last, but certainly not least, I express my gratitude for the assistance that I have received from the Minister for Local Government and Planning, Derek Mackay, and his officials.
When I set out on this journey, I very much doubted that my member’s bill would get beyond stage 1, let alone one day make it on to the statute book. I did not allow myself to believe that that would happen. I believe that it will now happen because politicians have decided to set aside their political differences to collectively address the problem of local authority debt recovery. Congratulations must therefore go not to me, but to the Parliament as a whole.
I want to focus on the main changes that arose from the stage 2 consideration. The bill was amended in three main areas: it was extended so that local authorities’ actions would be encompassed under sections 25, 26 and 27 of the Building (Scotland) Act 2003, and it was amended to allow variation of the term of a changing order and to provide clarification of the liability of owners.
At the start of my speech, I referred to the change to the bill’s title. The reason behind that change represents one of the most significant changes to the bill. Local authorities have other enforcement powers under the 2003 act and, in some instances, they have to undertake work when an owner does not comply with notices that are served on them under those powers. Those powers relate to building regulations compliance notices under section 25 of the 2003 act; continuing requirement enforcement notices under section 26 of the 2003 act; and building warrant enforcement notices under section 27 of the 2003 act. The bill was extended to provide local authorities with greater certainty that they would be able to recover their costs in carrying out their duties under those sections of the 2003 act.
Action under those sections might not be as common as local authority action in relation to dangerous buildings, but it is no less important that local authorities have access to appropriate cost recovery tools when they have to step in to undertake work for compliance, enforcement or safety purposes.
The second area of change relates to the fixed 30-year repayment term. During stage 1, it became apparent that a number of local authorities had concerns about the fixed 30-year repayment term, particularly for lower sums. I readily acknowledged those concerns, so I brought forward a package of amendments to enable local authorities to determine the number of annual repayments that an owner must pay. The bill now provides for local authorities to determine the number of annual repayments, which must be no less than five and no more than 30. As well as addressing the point about the size of the debt, that change allows local authorities to take into account the debtor’s ability to pay.
The third area that I wish to touch on relates to the liability of owners. During stage 1, local authorities expressed concern that a property might be sold or its ownership transferred before a charging order could be registered, and they suggested that a notice of liability might help in that respect. On further investigation, it became clear that the crux of the problem related to timing. It should be possible for a local authority to register a charging order very soon after work has been carried out. Local authorities should not view charging orders as a tool of last resort, as they may have viewed them under the 1959 act; rather, they should be proactive in using them to secure the debt.
In conjunction with the Scottish Government, I looked into the possibility of the registration of a notice of potential liability in advance of a charging order but found that that would serve only to create a layer of bureaucracy that would detract from the simplicity of the bill. It would also have incurred additional costs for local authorities.
However, I recognised that liability might become an issue over the longer term as a property changed hands, which is why I lodged an amendment to clarify liability by ensuring that those who seek to avoid their responsibilities cannot. It provides that the buyer of a property, where a charging order has been registered, is to be severally liable with the seller for any unpaid amounts due by the seller under the charging order.
I will mention briefly the subordinate legislation powers. The Delegated Powers and Law Reform Committee suggested that my bill should be amended to allow Scottish ministers to directly amend schedule 5A to the 2003 act to alter the form and content of a charging order, rather than leave the prospect of that being done by way of subordinate legislation. At stage 2, the Scottish Government decided to make use of existing powers under the 2003 act to prescribe the form and content of a charging order and a discharge. Therefore, my commitment to address the point has been somewhat overtaken, as it has been addressed by other means. I will leave it to the minister to explain the new subordinate legislation provision in section 1A.
The stage 2 process and today’s amending stage have been crucial to ensuring that the bill delivers an effective and modernised charging order mechanism for local authorities to recover from owners sums owed when local authorities have stepped in to carry out work under parts 3 and 4 of the 2003 act. Looking to the future and the bill’s implementation, I understand that the Scottish Government will be producing guidance to underpin the bill’s operation and that it will also prescribe the standard form and content of a charging order and a discharge to ensure consistency of operation across local authorities. The bill will come into force six months after royal assent.
I move,
That the Parliament agrees that the Buildings (Recovery of Expenses) (Scotland) Bill be passed.
14:51
It gives me great pleasure to contribute to the debate on the Buildings (Recovery of Expenses) (Scotland) Bill. I, too, thank all the relevant committees for their hard work and careful scrutiny of the bill. I also thank MSPs for their comments as the bill has progressed through Parliament, and express my thanks to the organisations that provided oral and written evidence, which has assisted us with our deliberations. I acknowledge the significant amount of work that Mr Stewart has done over the past four years or so to get the bill to this stage.
As Mr Stewart explained, his bill proposes considerable improvements to the existing enforcement powers for local authorities under the Building (Scotland) Act 2003. The bill will improve the recovery of expenses incurred by local authorities under parts 3 and 4 of the 2003 act by enabling a charge for the repayable amount to be registered against the title of the building concerned.
The bill as introduced was targeted at defective and dangerous buildings. I am extremely pleased that it now covers the other local authority enforcement powers under part 3 of the 2003 act on work resulting from statutory notices under sections 25, 26, and 27.
Under the Building (Scotland) Act 2003, local authorities must take action on buildings that they consider to be dangerous. That might be by taking urgent action to secure the building and the surrounding area, or it could mean getting the building repaired. In extreme cases, a local authority may decide to demolish all or just part of a dangerous building.
For a defective building, local authorities’ powers are discretionary, as is the case for their other enforcement powers. In all enforcement cases, when an owner has not carried out the work required by the relevant notice, the local authority can step in and undertake the works.
The enforcement powers allow local authorities to intervene—I hope that they will be more proactive in doing so—and, importantly, deal with immediately dangerous situations, stop buildings deteriorating and rectify building work that does not meet building regulations.
Normally, when the local authority becomes involved, the building owner will rectify any problems themselves but, as we know, that does not always happen. Where the local authority decides to step in and do the work in default of the owner, it can recover its costs, but normal debt recovery methods are sometimes proven to be problematic. Therefore, the lack of certainty of recovering its costs could influence whether a local authority decides to do the work in the first place.
The Government has acknowledged that the existing powers needed strengthening, and it has listened carefully to the views of local authorities. It is clear that any changes must include registration against the titles of buildings. That will alert future owners to any existing liabilities.
Last year, the Government included proposals for improved powers in the Community Empowerment (Scotland) Bill consultation, which took a slightly different approach from the bill as introduced by Mr Stewart and covered all the enforcement powers. In January, the consultation closed and the Local Government and Regeneration Committee took oral and written evidence on Mr Stewart’s bill.
The Government held a workshop with all local authorities to explore both sets of proposals. The common message from that workshop was that there should be strong support for improvements, that repayment terms must be flexible and that all enforcement powers should be covered. In fact, the Convention of Scottish Local Authorities went on to ask us to use Mr Stewart’s bill, because of timing and other factors, rather than the Community Empowerment (Scotland) Bill. Being the reasonable man that I am, I opted for that course of action. [Interruption.] As the First Minister said, the Government does not have a monopoly on wisdom, so I am delighted by the cross-party approach that we have taken. Judging from the banging of a table to my right, I think that we even have Conservative support in this new consensus between Labour and the Scottish National Party.
Taking on board all those comments, and having made the necessary provisions, we are delighted to give our support to Mr Stewart’s bill as amended at stage 2. There were 28 amendments at stage 2, four of which were lodged by Mr Stewart and 24 by the Government. They covered the key aspects that had been identified at stage 1, including flexibility in the number of annual payments, liability for new owners and widening the application of the bill to include local authority enforcement powers, as previously described. There were also technical amendments.
The Government lodged 13 amendments for stage 3 today. They were intended to provide clarification and to pick up some technical and minor changes following the stage 2 amendments. The stage 3 amendments sought to make it clear that a charging order can be made in respect of a building warrant enforcement notice only where that notice was served on the owner; that a charging order can be registered as soon as it has been made, without having to wait for any appeal to be made or be determined; and that new section 46F of the 2003 act, as introduced at stage 2, will operate as intended by removing inconsistent provision. That means that a new owner will not become liable if they acquire a right to the building within 14 days of the charging order being registered. I am delighted that those amendments have all been agreed to this afternoon.
I will now explain some aspects of the bill. The owner of a building is responsible for ensuring that their building is safe and in good repair. A local authority can step in and take emergency action on a dangerous building, or it can carry out work when an owner has not complied with a statutory notice. The bill allows authorities to make a charging order to help them recover their expenses from the owner. The order sets out the repayable amount, the appropriate number of annual instalments—between five and 30—and the date each year for payment. That allows the local authority to consider the repayable amount and the owner’s ability to pay when deciding on the number of instalments. The repayable amount that is due to the local authority includes construction-related expenses, any registration fees relating to the charging order, any administration expenses and interest—at a reasonable rate. The local authority must register the charging order in the appropriate land register, which creates the charge on the affected property.
The charging order provides that the repayable amount is to be repaid in annual instalments. However, an owner can still pay the debt in full at any time or, if the local authority agrees, they can redeem it by paying a lower settlement figure. At that point, the local authority must register a discharge of the charging order as soon as practicable in the appropriate land register.
The owner can appeal a charging order within 21 days of its being made, so it will not come into effect immediately. However, the owner may try to change ownership of the building and use the appeal mechanism as a stalling tactic. I believe that we have addressed a number of those issues in the course of the debate.
As I said earlier, the Government fully acknowledges that the cost recovery aspects of parts 3 and 4 of the Building (Scotland) Act 2003 should be improved. Enforcement is an important part of local authority work. It is at the core of ensuring the safety of people inside and outside buildings and protecting the built environment. Local authorities must invest time and resources when owners do not fulfil their legal obligations, so it is important that they have certainty that they will be able to recover their costs and expenses.
The Government will update all relevant guidance in the online “Scottish Building Standards Procedural Handbook” and will continue working with all local authorities so that they are fully aware of the new provisions. I can assure Parliament that those pieces of new guidance will all be in place in time for commencement of the bill, six months after royal assent.
I urge Parliament to agree that the Buildings (Recovery of Expenses) (Scotland) Bill be passed.
14:59
I thank my Labour colleague David Stewart for choosing to champion this issue. As members have seen this afternoon, for a minister in another party to have all the amendments that he has lodged accepted by the mover of the bill is not actually a usual occurrence in this place. I congratulate David Stewart on his commitment to the issue and on his success in steering his member’s bill through the committee and past the minister—and for enlisting us all in the process, as the issue is an important one.
The evidence sessions that the committee held were invaluable in teasing out the issues from a wide range of stakeholders, including in particular local authorities, which clearly experience a gap in their powers. In the current financial climate, it is important that local authorities do not subsidise repairs to buildings that should properly be carried out by their owners. I thank the committee for its work, and I also thank all the stakeholders who submitted evidence. I hope that the bill that we will pass this afternoon captures all the sensible contributions that were made in the Parliament.
My party is keen to support the bill, and I am politically and personally keen to support it not only because of my knowledge of buildings in the city of Edinburgh and the Lothians, but because of the impact that it will have across the country. The bill is important for the character of our towns and cities and for the quality of our built environment. We are all aware of the negative message that decaying, unlooked-after buildings send out in our local communities. They can have a social and an economic impact, and there is also the issue of safety that David Stewart mentioned. Buildings that are in disrepair and are not properly looked after can be exceedingly unsafe for both users and the public. Last night, I spoke in a members’ business debate on the Rana Plaza disaster, which is a tragic example of what happens when buildings are not looked after and are not used for the right purpose.
The bill is a practical piece of legislation and an important one. In my region of the Lothians alone, 46 dangerous building notices were issued in 2011-12—in just one year—so I very much welcome the practical provisions in the bill that will enable local authorities to recoup the costs of dealing with dangerous buildings.
The minister mentioned a couple of provisions that have changed between the initial proposals and the final bill that we will pass today. I particularly welcome the change on the 30-year payback issue, which has been addressed in the final bill. There should be scope for sensitivity to an owner’s circumstances, and local authorities should be able to address that. I flag up that issue because it was addressed in the equality impact assessment that accompanies the bill. It is particularly important for people on low incomes, who will now have a different opportunity to pay the bill on the sale of their property. The change to the attachment of orders to the property rather than the person is important in that respect.
The amendments that the minister successfully moved are also important. In particular, amendment 7 will prevent owners from dodging their liability and trying to ignore their responsibility for buildings that they have profited from. For that reason, it is good that we were able to amend David Stewart’s bill this afternoon.
At present there is about £3.9 million of outstanding debt and only 50 per cent of local authority costs are recouped. We need to address that. The bill will plug that gap and address the problem by ensuring that local authorities, which are currently cash strapped, will be able to recoup their costs from the owners who have benefited from owning the buildings. I hope that this afternoon, across the parties, the Parliament is sending out a message that we all believe that owners need to take proper responsibility for maintaining their properties in good order.
I reiterate David Stewart’s view that the provisions in the bill should be a last resort and not a first resort. I say that in the knowledge that, in Edinburgh, the statutory repairs notice has become a first resort rather than last resort for far too many owners, with negative consequences. Next week we will debate the Housing (Scotland) Bill and we will again strengthen the scope for local authorities to step in where individual owners will not pay their share. The two bills represent important and beneficial changes in legislation that aim to ensure that we have well-maintained, safe buildings.
I look forward to David Stewart’s bill being passed today and to its becoming law, and I look forward to local authorities across the country being able to use the provisions in the bill in practical ways to improve the quality and safety of our built environment.
I call on Alex Johnstone. You have five minutes, Mr Johnstone.
15:04
Thank you, Presiding Officer. Would that be a whole five minutes?
I begin by offering Cameron Buchanan’s apologies. He has been involved in the process of considering the bill in committee, but sadly he has been called away on personal business today. As a result, he has asked me to step in at the last minute. I was handed the papers and told that the bill is uncontroversial. That has happened before and I have seen it as a challenge, but on this occasion I assure David Stewart, whose bill it is, that I will try not to stir up unnecessary controversy.
In fact, I pay tribute to David Stewart. Guiding a member’s bill through the Parliament is a complex and difficult process that requires a great deal of effort on the part of the bill’s sponsor, and we should congratulate David Stewart on his achievement. I have never taken a member’s bill to completion but, many years ago, I produced a proposal for a bill that would have had the effect of requiring country-of-origin labelling for meat. I had several meetings on the subject and met Jim Walker, the then president of NFU Scotland. At a quiet moment during the meeting, he whispered to me, “Country-of-origin labelling would be a good idea but, to be honest, species-of-origin labelling would be just as useful.” That perhaps prefigured a story that hit the news some 10 years later and should encourage us to take a long-term view on a number of subjects.
The bill is an uncontentious piece of legislation that is ideally suited to being a member’s bill and will have a significant impact in many areas of Scotland. Nevertheless, we should be concerned about the subject of the legislation. We should always be concerned about the quality of the built environment, and safety is an issue when buildings in some of our town centres are in such a state that bits can drop off and do damage to people as they pass in the street. Sarah Boyack talked at length about her experience in Edinburgh. In many of our county and market towns, which were once prosperous but are now somewhat less so, buildings can often fall into disrepair. Given the difficulties in bringing together owners to achieve the objective of repair, it is important that local government has the powers of last resort to achieve what we want to achieve. The bill delivers the powers and the process. It delivers the opportunity for local government to ensure that the criteria are fulfilled, and it is a sound example of what the Parliament can achieve.
Looking at the general issues surrounding the process that we have gone through, we see that the bill has been uncontroversial. No member contested any of the amendments, and the bill’s sponsor and the Government minister and his department have worked together seamlessly to bring the legislation to fruition for the benefit of all. There are some days when the Parliament does not distinguish itself, but there are other days when, in an unspectacular way, it does. I think that this is one of the latter.
15:08
I, too, pay tribute to Mr Stewart for his four-year struggle to get the bill to where it is today. Other members have talked about the co-operation that there has been between Mr Stewart, the Government, the parliamentary committees and others. One of the reasons why the process has been so successful is the fact that Mr Stewart entered it in a spirit of co-operation, with a great degree of gumption and a hell of a lot of civility. That is the way to push things forward.
We have heard about the £4 million or thereabouts of outstanding debt. However, throughout the country, there are buildings in a state of disrepair whose owners councils have to chase up on a regular basis, often failing to do so. As has been pointed out, owners may be anywhere in the world and can be difficult to contact. A witness spoke about an owner in Antigua, and a number of years ago, when I was a councillor, I was involved in a case in which the owner lived in Gibraltar and it was almost impossible to get that person to co-operate with the council.
We all know of buildings that blight communities across the country. I hope that the bill, as well as allowing councils to recover costs, will persuade owners who have allowed their properties to become derelict and unsightly to get on with the job of fixing them without councils having to step in to do so. As well as dealing with a difficulty, the bill might prevent some unscrupulous property owners from allowing buildings to go to wrack and ruin.
Unfortunately, buildings that have major historical significance and are part of our heritage are often left to rot. Probably the best example of that in my constituency at present are the Broadford works buildings, where there is planning permission to do a number of things. Time and again, however, there have been acts of fire raising, which have led to the buildings becoming more and more dangerous, and steps have to be taken to deal with that. There is probably not one member who could not name buildings in their patches that have suffered similar fates. Although the provisions on the recovery of costs are extremely worthy, I hope that the bill will also result in prevention.
We had good information from the folks who submitted evidence during the process. I know that David Stewart thought long and hard about what others said and amended the bill accordingly or agreed to amendments. As Mr Johnstone says, we can do things well if we enter into things in the spirit of co-operation and with gumption and civility. I pay tribute to Mr Stewart for approaching the bill in that manner.
15:12
I, too, congratulate David Stewart on bringing the bill through its stages and getting it here today. I pay tribute to the minister, Derek Mackay, and the Scottish Government for their approach to the bill and for taking it on board. That is a sign of the way in which we can work together in the interests of our communities and of Scotland. I hope that, once we get past the landmark date in September, regardless of the outcome, parties across the chamber will start to work much more closely together for communities and for Scotland. I also pay tribute to the convener of the Local Government and Regeneration Committee, Kevin Stewart, for the way in which the committee engaged with the minister and with David Stewart as the bill progressed.
With measures such as these, I always ask myself what they mean for my constituents. As Kevin Stewart said, all members could talk about buildings in their areas. When the bill first came to the committee, I talked about the former Crown hotel building on Cowdenbeath High Street, which is in a terrible state of dereliction.
The Scottish Government’s memorandum to the committee states:
“It is hoped that successful use of the new powers in the early years would give local authorities the confidence to be more proactive in dealing with defective buildings in the longer term. This may take some time and will need investment by the local authority from the start.”
The key point is that the bill will, we hope, allow local authorities to be more proactive. Cowdenbeath is the largest shopping area in my constituency and the former Crown hotel building sits at the end of the High Street blighting it. Despite continued pressure from local councillors and others, the council seems to think that it is powerless to act.
I met the council recently and asked whether it thought that it would be able to use the proposed new legislation to move things forward, and I wrote to the council last week. The council says that it will continue to put pressure on the building’s owners. I think that the bill will also put pressure on the council to act, so that the derelict building is pulled down.
At a time when the economy is starting to move and town centres are starting to see improvement, and at a time when local authorities are putting in more resources, it is important that the bill is used to force owners to take action and, if an owner fails to take action, to enable action to be taken on the owner’s behalf.
That is why I am pleased about the definition of “defective building”. The Scottish Parliament information centre briefing on the bill says:
“A defective building notice specifies particular defects in a building that must be rectified to bring it up to a reasonable state of repair for its age, type and location.”
An obsolete building on the edge of a major high street, which has no roof and has partly caved in, is a blight on the community and needs to be tackled, even if it is not a danger to the public.
I hope that the bill will help us in Cowdenbeath, and I hope that it will help communities throughout Scotland. I congratulate Mr Stewart on sticking in there and introducing his bill.
15:16
I congratulate David Stewart on having brought his member’s bill this far. I am not a member of the Local Government and Regeneration Committee, but I have read the bill with interest. I note that David Stewart is a man of many talents, which he displayed earlier this afternoon and last night, when I watched with interest the proceedings of the cross-party group on diabetes, which he convenes. He is a busy man.
It is fair to say that, from an architectural point of view, Scotland has a lot of history. Edinburgh, our capital, is an architect’s dream, with medieval buildings standing side by side with Victorian terraces, Georgian town houses, and modern homes, offices and retail outlets made from glass and steel.
Buildings are made from perishable materials and they begin to crumble over time. As David Stewart’s consultation paper pointed out, we are sometimes reminded of that in the most tragic circumstances. The case of Australian student Christine Foster, who was working in Edinburgh’s west end in 2000 when she was killed by falling masonry, is a sad reminder that buildings in a poor state of repair can be fatal.
The fatal accident inquiry that followed the incident asked the City of Edinburgh Council to carry out
“an immediate audit of those buildings within the city thought to constitute a risk to public safety”.
Next Saturday it will be exactly 14 years since Christine Foster was killed. We owe it to the many people who have been killed or who have suffered injury as a result of defective and dangerous buildings to ensure that the legislation that we design to prevent such incidents is robust and effective. I hope that the bill will play a part in that regard.
The Building (Scotland) Act 2003 gave local authorities powers to repair dangerous buildings, under sections 29 and 30, and to repair defective buildings, under section 28. As we know, if a building is considered to be dangerous to its occupants, a council must require the occupants to leave the building and can subsequently carry out any work that it deems necessary to make the building safe. Alternatively, the council may serve a dangerous building notice on the owner, if it does not intend to carry out repairs itself.
Likewise, a council can issue a defective building notice, requiring the owner of a defective building, which is defined as a building that requires repair to prevent significant deterioration of its fabric, to make repairs in a defined timescale.
It is of course the case that we are living in an age of huge financial constraint, if not austerity, and councils cannot possibly carry out a significant volume of building repairs without recouping the outlays that they incur in the process. David Stewart rightly pointed out that in that regard the 2003 act has not been effective. Charging order provisions under the 1959 act were not carried forward and the enforcement regime did not work as well as it might have done. Councils face significant monetary losses as a result of unrecovered debts.
I listened to Alex Rowley, and I note that Fife Council, in its submission on the financial memorandum, noted the lack of a proactive approach to defective buildings and said that there was a large repairs backlog to contend with. There are challenges.
It is true that perhaps the biggest barrier to councils exercising their powers to repair dangerous buildings are the legal difficulties that they face when it comes to recovering debts. I am pleased that the charging order provisions in section 1 of the bill will mark a significant improvement on the existing situation. Undoubtedly they will give more flexibility to the council and to the building owner with the aim of ensuring that the debt is repaid.
It is fair to point out that there was criticism of the initial 30-year repayment period and term of the charging order, and I am pleased that some flexibility was given to local authorities at stage 2. However, it must be the case that a gradual recovery over several years is far better than no repayment at all. I am also pleased by the amendments at stage 2 and at stage 3, the effect of which will be to encourage local authorities to register charges promptly. It must not be forgotten that arrangements can be made to allow charging orders to be discharged earlier.
I am pleased to support the bill at stage 3 and welcome its progress into legislation.
15:20
This has been a constructive debate about an important, albeit small, bill.
One of the best speeches in the debate was the one that we have just heard from Roderick Campbell. His expertise in legal circles was brought to bear in explaining exactly what the consequences of failing to deal with this problem might be. He reminded us that, sadly, a number of people have been killed or injured by falling masonry or roofing tiles. When that is possible in our streets, it is an example of something that we in the Parliament should be dealing with.
Because I neglected to do so in my earlier speech, I take this opportunity to pay tribute to the Local Government and Regeneration Committee. I mentioned that it is an onerous task for an individual member to take a member’s bill through the process, and that is also the case for the committee that takes on that responsibility. I am glad that the committee and its convener were able to deal with it in such an effective manner.
The debate has interested me for one other reason. Perhaps I am getting the technicalities wrong, but I would like to make my mark by noting that, in the amendment debate, I believe that I heard Angela Constance speaking on behalf of the Queen.
There is little more for me to say other than to congratulate all those who have been involved with the bill. When decision time comes, the Conservatives will confidently support the Buildings (Recovery of Expenses) (Scotland) Bill. I wish David Stewart good luck in achieving his objective.
15:22
I am keen to contribute to the closing of today’s stage 3 debate on the Buildings (Recovery of Expenses) (Scotland) Bill for the Scottish Labour Party. I, too, thank David Stewart for all his hard work in making these important proposals in the Parliament. Huge thanks are also due to the convener and members of the Local Government and Regeneration Committee, of which I am a member.
In response to the minister, Derek Mackay, I am pleased to note that the Scottish Government continues to broadly support the bill and I welcome his amendments. I agree that the majority of them were procedural and served to strengthen our shared aims.
Ultimately, the bill will provide the power for local authorities to carry out modifications on defective or dangerous buildings and pass the cost on to the owner of such a building. Sarah Boyack rightly raised the concern that local authorities are paying for repairs to derelict properties in times of budget constraints. That is unfair and unsustainable. The bill will help to address that issue and provide a commonsense answer to the question of improving our town and city centres.
I welcome the reintroduction of charging orders as a means of ensuring that the local authority is able to recover its expenses before the building changes ownership. To clarify, in cases in which owners fail to respond to the local authority’s notice that their residence is unsafe and must be altered—Sarah Boyack mentioned an owner in Antigua and I think my colleague on the committee Kevin Stewart mentioned one in Gibraltar—the bill will facilitate repayment for authorities that undertake the modifications.
David Stewart’s member’s bill amends the Building (Scotland) Act 2003 in order to introduce a more efficient and flexible cost-recovery process for local authorities. It grants local authorities the power to make charging orders that will attach to the properties in question and recover some of the outstanding debt when the property is eventually sold.
It creates flexibility in allowing property owners to negotiate with the local authority and possibly pay a reduced amount, which improves debt recovery rates, while also allowing for a settlement that is acceptable to both parties.
I believe that the bill will significantly increase rates of recovery of expenses from building owners, given that the current recovery rate is low, at only 50 per cent. By expanding cost-recovery mechanisms, the bill encourages local authorities to fix defective buildings preventively before the likely costs would increase.
Currently, there is a large disparity in how local authorities are issuing notices; certain councils issue a high number of notices each year while others issue very few or none. In addition, notices are issued per owner, not per building, so the number of notices issued per year does not necessarily account for the true number of buildings falling under the bill’s jurisdiction. The bill will standardise the process.
The bill creates a provision for individuals to make appeals against incorrect charging orders, thereby establishing a mechanism of accountability for local authorities carrying out the repairs. I am reassured to note that the right to appeal against a charging order has remained an important part of the bill. I believe that its incorporation will serve to strengthen the process of recovering expenses from the building owners.
I have considered the contributions of most of the members who have spoken this afternoon—apologies to those I did not mention. I thank members for sharing their fine examples of how the bill will ultimately benefit our communities. I am confident that there exists a broad level of consensus on the aims of the bill. I believe that local authorities will find a way to exercise the new powers in a manner that reflects local priorities and improves the safety and aesthetics of our communities. I look forward to voting in favour of the bill.
15:27
This has been a good debate in taking the bill to its satisfactory conclusion. I commend Dave Stewart for taking the bill forward in the way that he has. I believe that his stock in the Parliament is now even higher, across the chamber. He has helped make the connections to make it possible for the Government to support the bill in a constructive way.
I will set out some of the background to how we reached this consensual position. The contents of the bill are worthy and there is a great consensus of support for it. The timing of it was better; the Community Empowerment (Scotland) Bill is more comprehensive and will therefore take a bit more time to go through the Parliament. Local authorities liked both sets of powers—one man’s notice of liability is another man’s charging order—but we have gone with the charging order. Despite all that, the way that business was conducted ensured that we could work on a cross-party basis.
Of course, timing is everything in politics. Some members might not be aware that Mr Stewart approached me straight after the budget process this year, when the Labour Party and the SNP voted together, with others, for the satisfactory approval of this year’s budget. Mr Stewart seized that moment of cross-party consensus to ensure that his bill was also supported by the Government. That is the inside track on the moment at which I surrendered to Mr Stewart, for all the very positive reasons that we have discussed.
The Parliament can be tribal, but there is absolutely a time to set aside our party-political differences. It does not matter whose name the bill is in, as long as the right bill is built and can deliver for the people of Scotland, and I believe that the bill will do that.
Alex Johnstone made very supportive comments on behalf of the Conservatives, and Kevin Stewart was absolutely right to touch on the power of prevention in the agenda. The bill will assist local authorities in that respect, with their building control function.
Alex Rowley is another bridge-builder in the Parliament in respect of what we can do when we work together, being pragmatic and using the powers that we have. He was absolutely correct: there are existing powers that local authorities could use for defective and dangerous and neglected buildings. However, the bill will give them the reassurance that they will be able to receive recompense for taking the necessary action on dangerous and defective buildings.
Alex Rowley posed an even more interesting point. Is that a sign of the post-referendum future, of the Labour Party and the SNP working together? Is it a sign of the brave new world of Scottish politics? Who knows what sort of coalition might come in future? Suddenly, the stock of some Labour members is not quite so high, but we would like to continue their consensual approach.
Public sector proactivity, even where there is private ownership, is very much required. I cite the Community Empowerment (Scotland) Bill’s ability also to tackle neglected and abandoned land and buildings. We have made quite radical proposals in that bill to give communities the right to take over land and properties that have been abandoned and neglected, using compulsion, along lines that perhaps Mr Rowley would support. I look forward to that bill making its way through the Parliament.
Roderick Campbell was absolutely right about costs to councils. Councils will be more proactive if they are certain that they will be able to have their costs recompensed. That is not just the cost of the work itself, but the costs of administration and any necessary interest charges, so that when the public sector takes action, it does not pay the price for private neglect.
First and foremost, this bill is about public and individual safety. We believe that its powers, with all the necessary amendments, will help to deal with immediately dangerous situations; allow the required interventions; stop buildings deteriorating; and rectify building work that does not meet building regulations. That is all very necessary.
That poses the question: why were some of those powers removed in 2003? I have had no satisfactory explanation of that. That is not a partisan point, but we will remedy that in a constructive way when the bill is passed, which I hope it will be.
The bill will give councils a mechanism to take correct and timely action with the confidence that they will be supported. That can also empower communities and raise the culture of expectation of public sector intervention when and where that is required. We know that the current normal civil debt recovery methods were problematic and had to be improved. Attaching the notice and charging order to the titles is exactly the right thing to do, as we know that that will be preventative and will, through the nature of conveyancing, clear up the responsibility of owners not to have that liability hanging around their neck for any future owner, unless that is by agreement.
There are enough appeal, flexibility and financial mechanisms to ensure that the approach is appropriate, proportionate and pragmatic. Ensuring that, through working in partnership with them, our local authorities are empowered to make the right interventions to keep the people of Scotland safe is absolutely the right thing to do.
I am happy once again to give the Government’s support to the bill.
15:34
I thank each and every member who has spoken in the debate. That is probably the first time that I have ever said those words in the Parliament over the past seven years, but I am very grateful for the personal support that I have been given and the support that has been acknowledged from the Minister for Local Government and Planning, the Delegated Powers and Law Reform Committee and every single member who has provided advice and support. Again, I flag up the help that I have received from the non-Government bills unit, the legal team and everyone else involved. Without that support, which is not available at Westminster, it would be impossible to achieve a successful member’s bill.
If we need one reason to pass the bill today, we have only to look back to what happened in Glasgow last week, when masonry from a sandstone building collapsed on to a street. That brings the bill into sharp focus. One of the bill’s main drivers is to provide local authorities with a greater assurance that they will recover their dangerous building costs. With that, I hope that councils will have more confidence to tackle high-level defective buildings or borderline dangerous buildings earlier—which will be less costly and will preserve the value and structure of properties—rather than have to deal with more dangerous buildings in the longer term.
I make no apologies for referring again to the statistics, which show that instances of action without notice under section 29 of the 2003 act—the most urgent action—more than doubled from 402 in 2010-11 to 992 in 2011-12. That clearly demonstrates the need for local authorities to have effective cost-recovery tools at their disposal.
Steering the bill through the Parliament has not been altogether straightforward. Ordinarily, financial issues cause some concern in relation to a member’s bill, but the bill achieves a lot for very little. It could be described as a bill that punches above its weight.
It was more the technical vagaries that made the process more difficult. Although I developed the bill on the basis of existing relevant statutory frameworks, local authorities’ approach to debt recovery can vary. However, as a result of the parliamentary process and with the Scottish Government’s support, the bill does more than just recreate what went before in the 1959 act; it creates a modern version of a charging order that local authorities can use in their building compliance, enforcement and public safety work under the 2003 act.
Members have made excellent and informed speeches. I appreciated Derek Mackay’s positive comments and Sarah Boyack’s comments, given her background in planning, her knowledge of Edinburgh and the Lothians, her strong knowledge about the quality of the built environment and her understanding of the bill’s practical provisions.
I emphasise that the bill is not just about local authorities. Charging orders will be of great benefit to owners on a low income, such as those who are retired and are staying in a larger house after their family have left.
We all know that the debt across Scotland is running at about £4 million, which is a horrendous sum.
I was bemused when my colleague Alex Johnstone—is he paying attention? [Interruption.] I was bemused when he talked about being uncontroversial and I wondered whether he was the same Alex Johnstone as I know. Nevertheless, he ended on a positive point about bringing the Parliament together. I share his view on the wider philosophical point. Kevin Stewart also made a statesmanlike comment about the spirit of co-operation. We can do more together.
Alex Rowley has great knowledge of local government from his experience in Fife. He gave good examples from that area and I praise the work that he has done not only as an MSP but as a prominent councillor for many years.
Roderick Campbell is a knowledgeable advocate who has a tremendous understanding of the issue. He referred to the tragic case of Christine Foster and I acknowledge the points that he made. I thank Anne McTaggart for her comments about standardisation across Scotland. That will be very important in the longer term.
I will quickly run through the advantages of charging orders, which are crucial. They add to the local authority cost-recovery toolkit to deal with large and small repayable amounts. They secure the debt over the property, which creates a priority for the debt that it would not have as an ordinary, unsecured debt.
A point that has not been made is that provision is included to recover expenses that are incurred over and above the basic cost of undertaking the work. Local authority administrative costs, registering and discharge fees and interest are all things that can be added to a charging order.
As the order is against the property, it avoids the need to pursue an individual in the civil courts. As members will know, that is not always successful and can be time consuming and expensive. It might also not be a viable option—that depends on the sums that are involved and being able to trace the owner, whether they are in Antigua or elsewhere.
A charging order provides a greater guarantee of the costs that are to be recovered. It enables a local authority to determine the number of annual instalments while—as Sarah Boyack said—taking into account the person’s ability to pay.
The bill will act as an incentive that will make those who are liable pay, rather than incurring the additional costs. The normal requirement to clear the charging order prior to the sale or transfer of the property will give an incentive for property owners to make payment of the outstanding sums to facilitate a sale.
The introduction of several liability means that an owner cannot avoid their responsibilities. It is likely to be much better to have had repairs carried out and a charging order placed, than for a property to fall into further disrepair, which is a problem not just for the owner, but for their neighbours and the value of property in the street in question.
Charging orders have an advantage in that their existence, and the sums to be charged, are easy to establish from the land register at the point of sale.
In conclusion, the bill is a first for the current session of the Parliament as it is the first Opposition member’s bill to reach this stage in the parliamentary process. A fair wind at decision time will mean that it is a first for me too, as I have attempted on a few occasions, as an MP at Westminster and as an MSP here, to promote a member’s bill.
With great pleasure, I commend to the Parliament the Buildings (Recovery of Expenses) (Scotland) Bill. [Applause.]
Well done.