Status of the Domestic Heating Compliance Guide

D_Hailsham · 3 Nov 2007

In another post Megawatt said

It is all explained in the Domestic Heating Compliance Guide at:

http://www.planningportal.gov.uk/uploads/br/BR_PDF_PTL_DOMHEAT.pdf

Click to expand...

Yes it is but, as has been discussed many times on this forum, it is a guide not a law.

The reason it is a best practice guide and not enforceable as a law is that it has Should's rather than Must's which have entirely different legal implications ... Read it again and see what I mean.

See how many ... You MUST do this's you find and let us all know

MW

I have seen this argument many times and it really does not hold water.

If you look up "Should" in the Concise Oxford Dictionary you will find several definitions including:

1. Used to indicate obligation, duty or correctness

with the subsidiary meaning of:

used to give or ask advice or suggestions

I think you will find that a Court of Law will take it to be the "obligation" definition rather than the "suggestion" one which is intended here. Though you can always try your luck in court and prove me wrong.

In any case, if what you and others say is true then there is no need to do anything. NO condensing boilers, NO insulation, NO double glazing etc.

The route which gives the DHCR legal status is as follows:

1. Building Act 1984, which allows the Minister the power to make regulations and issue Approved documents to expand on the Regulations

2. The Building Regulations made under the powers in 1.

Section 35 of the 1984 Act says:

Any person contravening a provision contained in the building regulations is liable on summary conviction to a fine not exceeding level 5 on the standard scale laid down by the Criminal Justice Act 1982.

3. The Approved Documents made under 1 which puts the meat onto the Building Regulations.

The APs are given legal status by the 1984 Building Act

and finally the Domestic Heating Compliance Guide.

And even here there is no get out.

The Building Regulations only say:

Reasonable provision shall be made for the conservation of fuel and power in buildings

A very vague phrase! What exactly is reasonable? And we look in Approved Document L and we find:

Reasonable provision for the performance of heating and hot water system(s) would be:

a. the use of an appliance with an efficiency not less than that recommended for its type in the Domestic Heating Compliance Guide; and

b. the provision of controls that meed the minimum control requirements as given in the Domestic Heating Compliance Guide for the particular type of appliance and heat distribution system

So there we have it. If you want to meet the "reasonable provisions" stipulated in the legal Building Regulations, you have to meet the minimum standards laid down in the Domestic Heating Compliance Guide

ChrisR · 3 Nov 2007

Wrong.
Suggestions and recommendations may be one way of satisfying a law, but are not the only one unless specifically cited.
An "expansion" on a regulation does not invoke it as law.

D_Hailsham · 3 Nov 2007

ChrisR said:
An "expansion" on a regulation does not invoke it as law.

Can you give me chapter and verse to back up this assertion?

There is surely a difference between an "expansion" which is an opinion as to what a law means, say from a Solicitor or Barrister, and an "expansion" which is specifically authorized by Act of Parliament.

The main point is that the Approved Documents do have legal status and can be invoked in a court of law. They are the "bible" used by Building Control Officers to check that work meets the Building Regulations.

If you look at page 2 of the DHCG you will see:

This guide has been approved by Ministers and has official status

the fact that it is referred to in Approved Document L is enough to make it the "law" which has to be obeyed.

I agree that there may be more than one way of achieving an requirement, which is why the Approved document refers to meeting the minimum standards of the DHCG.

So under Boiler Interlock it defines what is meant by a boiler Interlock and makes it clear that TRVs on their own do not meet the requirement.

How you achieve the interlock is up to you but you must have one. It is a minimum requirement

ChrisR · 3 Nov 2007

I take it back, that document DOES appear to be specifically invoked. I (and maybe others) was wrongly assuming you were referring to the "Best Practice" guide.
I note some things changed, eg TRV's. SLightly odd wording there... It now seems to imply that for your Main zone you need a thermostat but only trvs in other zones. Most houses have one zone, therefore no trv's required...

The document you cite, I didn't know existed!

Softus · 3 Nov 2007

D_Hailsham said:
If you look up "Should" in the Concise Oxford Dictionary you will find several definitions including:

1. Used to indicate obligation, duty or correctness

with the subsidiary meaning of:

used to give or ask advice or suggestions

I think you will find that a Court of Law will take it to be the "obligation" definition rather than the "suggestion" one which is intended here. Though you can always try your luck in court and prove me wrong.

You are wrong. The guide has no legal standing.

In any case, if what you and others say is true then there is no need to do anything. NO condensing boilers, NO insulation, NO double glazing etc.

That isn't correct either. The guide itself says:

This guide is a second tier document referred to in .... as a source of guidance on the means of complying with the requirements of the Building Regulations for space heating systems and hot water systems.
.
.
.
It covers conventional means of providing primary and secondary space heating and domestic hot water for dwellings in use in England and Wales at the time of writing.

The route which gives the DHCR legal status is as follows:

1. Building Act 1984, which allows the Minister the power to make regulations and issue Approved documents to expand on the Regulations

2. The Building Regulations made under the powers in 1.

.
.
.

3. The Approved Documents made under 1 which puts the meat onto the Building Regulations.

The APs are given legal status by the 1984 Building Act

I don't agree with your interpretation. The Building Regulations constitute a Statutory Instrument made by the relevant Secretary of State as empowered by the Building Act. The Approved Documents are merely ratified notes for guidance.

If you want to meet the "reasonable provisions" stipulated in the legal Building Regulations, you have to meet the minimum standards laid down in the Domestic Heating Compliance Guide

No. Meeting the DHCG standards is one way to demonstrate compliance, but it isn't the only way.

If you need convincing, then read the following extract from the DHCG itself:

The Domestic Heating Compliance Guide covers a range of frequently occurring situations but alternative means of achieving compliance may be possible.

D_Hailsham said:
ChrisR said:

An "expansion" on a regulation does not invoke it as law.

Click to expand...

Can you give me chapter and verse to back up this assertion?

It isn't really practical to give chapter and verse of every blindingly obvious piece of reasoning that exists in the world. Unless there is a definition giving an "expansion" the same power as a statutory statement, then the default is that it has no such power.

D_Hailsham said:
The main point is that the Approved Documents do have legal status and can be invoked in a court of law.

You might want this to be true, but it just isn't.

D_Hailsham said:
If you look at page 2 of the DHCG you will see:

This guide has been approved by Ministers and has official status

It has official status as a guide, not official status as in "it is the law".

Agile · 3 Nov 2007

Lord Hailsham QC died in 2001 so that is not he !

Nevertheless, this Hailsham has a good legal knowledge!

Tony

Softus · 3 Nov 2007

Agile said:
Nevertheless, this Hailsham has a good legal knowledge!

Really? Surely if that were true he wouldn't be diametrically wrong.

megawatt · 3 Nov 2007

A couple of points ...

1. Softus's main post above is 100% accurate.

2. Interestingly D_Hailsham's last line [code:1]How you achieve the interlock is up to you but you must have one. It is a minimum requirement[/code:1] re-inforces my initial comment which provoked this thread as the guide doesn't use Must but states Should which, as I have already mentioned have very different meanings in law.

3. D_Hailsham: The Oxford Concise may be a useful source of reference for this forum but it is of no use whatsoever if you are writing a contract

I have been involved in enough contracts over the years to know that Should is used for optional and Must is used for mandatory.

4. The final sanity check here is ... Does anyone really believe that a homeowner is ever going to be prosecuted for breaching Part L? ... They could bring in a new offence ... Caught in possession of a deficient boiler interlock Hmmmnnnnn

MW

D_Hailsham · 4 Nov 2007

Agile said:
Lord Hailsham QC died in 2001 so that is not he !

No relation - its just where I live!

Nevertheless, this Hailsham has a good legal knowledge!

Thanks for the compliment. I am not a lawyer, but I have always taken an interest in legal matters. It most likely springs from the fact that I spent nearly 20 years working for Local Government where everything has to be done according to the law.

As one of my legal friends once told me: In business you can do anything you like - provided it is not against the law; in Government you cannot do anything unless the law allows it.

D_Hailsham · 4 Nov 2007

Softus said:
D_Hailsham said:

The APs are given legal status by the 1984 Building Act

Click to expand...

I don't agree with your interpretation. The Building Regulations constitute a Statutory Instrument made by the relevant Secretary of State as empowered by the Building Act. The Approved Documents are merely ratified notes for guidance.

Just to pick up on this one point, I would direct you to:

http://www.planningportal.gov.uk/england/professionals/en/1115314116322.html

this says:

Status of Approved Documents
The Approved Documents are intended to provide guidance for some of the more common building situations. However, there may well be alternative ways of achieving compliance with the requirements. Thus there is no obligation to adopt any particular solution contained in an Approved Document if it is preferred to meet the relevant requirement in some other way.

They are given legal status by the Building Act 1984.

The biggest problem is that the Building Regulations are deliberately vague:

L1. Reasonable provision shall be made for the conservation of fuel and power in buildings by: -

(a) limiting the heat loss through the fabric of the building;

(b) controlling the operation of the space heating and hot water systems;

(c) limiting the heat loss from hot water vessels and hot water service pipework;

(d) limiting the heat loss from hot water pipes and hot air ducts used for space heating;

Now who is to say what reasonable means? Your reasonable may be someone else's over-the-top. So the Approved Documents (which do have legal status) are issued to give guidance as to what is meant by reasonable.

As I have said, they do not tell you how you meet the requirements.

They may not set out chapter and verse what you have to do, but you will have a hard job convincing the authorities that you have met the "reasonable requirements" if you do not follow the guidance given!

There is an interesting case where the Secretary of State was asked to determine if an extension to an Historic House met the Part L requirements. It all hinged on what were "reasonable requirements"

You can read it at:
http://www.planningportal.gov.uk/england/professionals/en/4000000000979.html

What really intrigues me is why any self-respecting, competent heating engineer would want to scrimp on a job just to save a few pounds. What better way is there of convincing the customer that you need to put in an automatic bypass than to pull out the book and show them the page which says that you should do so?

As far as the "should/must" debate is concerned, I don't think we will ever agree on this

. I await a Court case with interest

megawatt · 4 Nov 2007

An interesting read.

Don't forget that this is a DIY forum and we must also consider the pragmatics of Part L to homeowners DIY'ing their own installations.

D_Hailsham · 4 Nov 2007

megawatt said:
An interesting read.

Don't forget that this is a DIY forum and we must also consider the pragmatics of Part L to homeowners DIY'ing their own installations.

I agree.

Who will start a topic on what a DIYer may or may not do? Competent person - CORGI registered etc etc.

Any offers?

Nige F · 4 Nov 2007

Agile said:
Lord Hailsham QC died in 2001 so that is not he !

Nevertheless, this Hailsham has a good legal knowledge!

Tony

I bet `e don`t live in Hailsham , niether........`kin rough old hole `er is

Softus · 4 Nov 2007

D_Hailsham said:
I would direct you to:

http://www.planningportal.gov.uk/england/professionals/en/1115314116322.html

this says:

Status of Approved Documents
The Approved Documents are intended to provide guidance for some of the more common building situations. However, there may well be alternative ways of achieving compliance with the requirements. Thus there is no obligation to adopt any particular solution contained in an Approved Document if it is preferred to meet the relevant requirement in some other way.

They are given legal status by the Building Act 1984.

Two points:

1. AFAIK, the site to which you refer does not, itself, have any legal status, and is not authoritative.

2. The term "given legal status" is ambiguous. Your interpretation is that it means "it is the law"; my interpretation is that means nothing.

The biggest problem is that the Building Regulations are deliberately vague

I don't agree that this is a problem. Since you think it is, please state the symptoms, or effect, of the problem.

Now who is to say what reasonable means?

The relevant court rules on this point, and the determination becomes part of case law.

Your reasonable may be someone else's over-the-top. So the Approved Documents (which do have legal status) are issued to give guidance as to what is meant by reasonable.

So, are the ADs part of statute law, or part of case law? If neither, then they are not law. If they are not law, then they don't have any more legal status than my cat.

They may not set out chapter and verse what you have to do, but you will have a hard job convincing the authorities that you have met the "reasonable requirements" if you do not follow the guidance given!

Speak for yourself. I can assure you that I would have no trouble whatsoever.

There is an interesting case where the Secretary of State was asked to determine if an extension to an Historic House met the Part L requirements. It all hinged on what were "reasonable requirements"

If you think that then you haven't understood the consideration. It "hinged "on whether the use of double glazing was an example of inappropriate extension works that could be prejudicial to important historic character.

What really intrigues me is why any self-respecting, competent heating engineer would want to scrimp on a job just to save a few pounds....

Since you've started to drag competence into the reasoning for [not] installing an auto-bypass, the rest of what you've written is mere speculation and opinion, and not anything to do with the letter and spirit of the law in the context of Part L1.

As far as the "should/must" debate is concerned, I don't think we will ever agree on this.

Oh you're quite wrong. We agree - it's only you who doesn't.

D_Hailsham said:
Who will start a topic on what a DIYer may or may not do? Competent person - CORGI registered etc etc.

Any offers?

Are you ****ing joking?

As if that discussion hasn't been had tens of times already.

denso13 · 4 Nov 2007

The legal status of Approved Documents is given in Section 7 of the Building Act 1984. Basically, whilst their use in not mandatory, where the provisions contained in the Approved Document have been followed they can be relied upon as meeting the requirements of the Building Regulations.

7.—(1) A failure on the part of a person to comply with an approved document does not of itself render him liable to any civil or criminal proceedings; but if, in any proceedings whether civil or criminal, it is alleged that a person has at any time contravened a provision of building regulations—

(a) a failure to comply with a document that at that time
was approved for the purposes of that provision may be
relied upon as tending to establish liability, and
(b) proof of compliance with such a document may be relied
on as tending to negative liability

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Status of the Domestic Heating Compliance Guide

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