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By Adjunct Professor Kim Lovegrove MSE RML, Chairman of the IBQC, Senior Lawyer, Lovegrove & Cotton – Construction and Planning Lawyers

On 9 October 2020 Kim Lovegrove addressed the IBQC Conference on Principles of Good Practice Building Regulation. The following is an extract from his section on ‘Enforcement’:

Legislation cannot be used as an effective means of regulating professional competency and behaviours unless the enforcement regime has real teeth.

An enforcement regime can only be effective if governments commit significant financial and human resources to the task.

Sometimes the introduction of legislation designed to eliminate recalcitrant behaviour can have the opposite effect if enforcement resources are inadequate. In such circumstances, history is instructive in showing that the egregious behaviour that the new laws try to prevent can increase.

The experiment with prohibition in the 1920s is case in point. In a 1991 paper tilted Alcohol Prohibition Was a Failure, author Mark Thornton stated that:

“National prohibition of alcohol (1920 -33) – the ‘noble experiment’ – was undertaken to reduce crime and corruption, solve social problems, reduce the tax burden created by prisons and the poor houses and improve health and hygiene…… The results of the experiment clearly indicate that is was a miserable failure of all counts…although consumption of alcohol fell at the beginning of prohibition it subsequently increased. Alcohol became more dangerous to consume; crime increased…….”

Lisa Dorr, in a paper titled Why Prohibition Failed, stated that:

“Even honest officials who did their best to enforce law were hampered at the outset by insufficient funding resources. The initial appropriation for enforcement was a paltry 2.1 million. Six years later, in 1927, the head of the [prohibition enforcement asked for at least 300 million per year to enforce the law effectively and he received only 12 million.  Inadequate resources at the federal level were matched by a lack of commitment to the law at the state and local levels.”

The Latvian supermarket roof collapse in 2013 that killed 54 people was, in part, due to the disbanding of the national building inspectorate on account of post-GFC austerity measures. Once the state-funded safeguard apparatus was removed, the holistic elements vital to the sound operation of the regulatory ecology lost shape.

Building regulations were not adhered to by some, which led to significant loss of life.

The collapse was yet another episode in a time that included a Brazilian nightclub inferno that killed hundreds and fatal fires in Bangladesh that killed scores of factory workers.

So, what is the take out for the building industry?

Inadequate enforcement, due in part to the underfunding of regulatory agencies seemed to be one of the contributing factors to these tragedies and unintended eventualities.

Not infrequently, reforming regimes introduce legislation to minimize or deter adverse conduct to little effect. Although the statutes may contain powerful penalty provisions that are designed as deterrents, the statutes are impotent if not enforced.

The post-GFC austerity measures that cut back government funding in key areas in Latvia and the failure of the prohibition regimes are instructive.

The worrying thing is this: as countries in a post COVID 19 world take on more debt and local government resources become further strained, the funding of law enforcement of building regulation is likely to diminish.

It is thus important that alternative models of sustainable funding are considered as building enforcement is greatly affected by an economy’s health.

User pays auditing and policing regimes

The antipodean legal fraternity applies a legislated user pays compliance regime. When law firms operate a trust account for the handling of client monies, they are subjected to annual audits by a qualified auditor.

The auditor has access to all trust account records; anomalies are picked up very quickly. The law firm has to pay for the audits and the auditors are totally arm’s length as the Law Societies accredit and nominate the auditors.

The same model can be introduced to building regulation. Legislation can be promulgated to mandate annual audits. The regulator can accredit qualified and experienced auditors to inspect not only the practitioner’s books, but also live building projects and the cost of the annual audits can be visited upon the practitioner or the building company.

User pays systems ensure that the auditing and policing regime is economically sustainable and immune to the ebbs and flows of the boom bust conditions of the building industry.

Importantly they are proactive and ahead of the game. Whereas reactive, complaint driven audits bring to mind the metaphor ‘too late the hero’; for by the time the auditor investigates, the damage is done.

Statutes, unless enforced and probity regimes upheld, assume little more compliance purchase  than a paperback novel. The “noble experiment” bore testimony to the utilitarian dividends of good intentions being thwarted by a parsimonious commitment to the funding of the vital organ of enforcement, the indispensable prerequisite to the orderly workings of a sound building regulatory ecology.

A sound enforcement regime must be complemented by competent decision making and fair legal processes

Upon the conclusion of an investigation or an audit if it is found that a practitioner  has engaged in professional misconduct the matter must be referred to a robust decision-making authority to apply sanction.

Some years ago, I co-authored a book called Disciplinary Hearings and Advocacy (which can be purchased at the attached link from the LIV). When discussing the object of disciplinary Proceedings, I stated  the object of disciplinary proceedings is to

‘regulate the conduct of practitioners and professionals who provide a variety of services to the public….these are the sorts of services that are important to the sound workings of society”

Further under the heading The Key Elements of a Sound Decision in shedding light on the decision makers skill sets I stated decisions should be:-

• Clear
• Precise
• Correct at law
• Technically correct
• Just
• Such that regards is had to the consequences of the decision
• Appeal proof

To achieve the above, disciplinary arbiters, have to be very skilled and any disciplinary hearing should be presided over by a combination of both legally and technically qualified decision makers whom are chosen on account of their high-level  decision-making dexterity, such is the gravity that is associated with their decisions in so far as they impact upon for respondents, the aggrieved and public at large.

In the case of serious misconduct, the penalties must be severe, such that they have a seriously punitive impact upon the respondent. Token punishments often incentivise egregious conduct, in other words along with inadequately resourced enforcement regimes they combine to undermine the integrity of the building permit ecology.