The history of building regulations and building control

The story of building regulation and control is one of belated action in response to crisis, and of continuing tension between the protection of the public and private profit.

Party walls are carried above the roofline of these London houses. It was not unusual in semi-urban districts to modify the relevant clause in the model byelaws to exempt houses of less than 30 feet in height, reducing cost and the potential for penetration by rain.

Introduction

Structural soundness, the prevention of fires and the promotion of public health are the main and long-standing objectives of ‘building control’. In the code of Hammurabi, one of the world’s earliest legal codes (dating to Babylon around 3,000 years ago), Edict 229 provides that ‘If a builder build a house for a man and do not make its construction firm, and the house which he has built collapse and cause the death of the owner of the house, that builder shall be put to death’.

One could call that a sort of ‘performance specification’; that is, houses shall be built in such a manner that they do not fall down, as opposed to an ‘input specification’ setting the exact requirements for the method, materials and dimensions. The other distinction to make is between building regulations (the law relating to buildings) and building control (the administration and implementation of that law).

Building regulation and control are tied to the development of central and local government, and of the representation of the people. It is often the poorest and least powerful in society who stand to gain the most from a system of building control, and are most likely to be the victims of poor and uncontrolled building. At the time of the Peterloo Massacre of 1819, where Manchester workers were protesting against a lack of political representation, barely one in 10 males could vote at national elections. The Reform Act 1832 had extended the vote to small landowners, shopkeepers and householders who paid more than £10 per year. But when, for example, the Report on the Sanitary Conditions of the Labouring Population of Great Britain was published in 1842, the labouring population of Great Britain had no vote and no political power.

The governance of towns evolved from medieval boroughs, corporations and aldermen, to the municipal corporations of the Municipal Corporations Act 1835 (with the members elected by ratepayers), through to the Local Government Act 1894, which created a two-tier system of counties, and urban and rural district councils. For a large part of this period the promotion of the interests of the poor depended on the magnanimity of the wealthy.

Turning to building regulation and control, London led the way. There were serious fires in the City of London in 1133 and in Southwark in 1212, and other smaller fires. Fire could mean impoverishment or worse. Below are extracts relating to buildings from the City of London Wardmote regulations in the Liber Albus, a compilation of laws and civic regulations of London from as early as 1067 but principally of the 13th and 14th centuries, here translated by Henry Thomas Riley:

• Item, that no chimney be from henceforth made, except of stone, tiles, or plaster, and not of timber, under pain of being pulled down.
• Item, that no house within the liberties be otherwise covered than with lead, tile, or stone; and if any such there be, that the same be forth with rased [sic] by the constables and scavagers, they taking for their trouble fourpence.
• Item, if any purprestures (encroachments) are made in the streets or lanes, or upon the walls or fosses of the City, or upon the Thames, or other the common soil within the Ward. That the Penthouses and Jetties of Houses shall be so high that folks on horseback may ride beneath them. And they shall be of the hight of nine feet, at the very least.

Scavagers were employed to watch for transgressions. Their duties are outlined in an oath: ‘You shall swear, that you shall diligently oversee that the pavements within your Ward are well and rightly repaired, and not made too high in nuisance of the neighbours; and that the ways, streets, and lanes are cleansed of dung and of all manner of filth, for the decency of the City; and that the chimneys, furnaces, [and] reredoses, are of stone, and sufficiently defended against peril of fire; and if you find anything to the contrary, you shall shew unto the Alderman, that so the Alderman may ordain for the amendment thereof. And this you shall not fail to do, So God you help, and the Saints.’

A picture emerges of medieval London with a set of regulations and a means of control, part of a system for the safe and efficient operation of the city. Other towns and cities in England were affected by large fires, but local systems of building control are thought to have been patchy. The arrival of the Black Death in 1348, and its continuing presence, dramatically reduced the size of the population. Two hundred and fifty years were to pass before new town building recommenced. So let us resume the story in 1666.

Rebuilding of London Act 1666

Produced in response to the Great Fire of London of 1666, the act (passed in 1667) states that it is for ‘the speedy Restoration whereof, and for the better Regulation, Uniformity and Gracefulness of such new Buildings as shall be erected for Habitations in order thereunto; and to the End that great and outrageous Fires (through the blessing of Almighty God) so far forth as human Providence (with submission to the Divine Pleasure) can foresee, may be reasonably prevented or obviated for the Time to come, both by the Matter and Form of such building.’

The act required ‘That all the Outsides of all Buildings in and about the said City be henceforth made of Brick or Stone, or of Brick and Stone together except door cases and window frames’. It created a design code, specifying that ‘there shall be only four sorts of building and no more’. As an example of the requirements, ‘the first and least Sort of Building, fronting By streets or Lanes as aforesaid, shall be of two Stories high, besides Cellars and Garrets; That the Cellars thereof be six Foot and a Half high, if the springs of water hinder not; that the first Story be nine Foot high from the Floor to the Ceiling, and the second Story nine Foot high from the Floor to the Ceiling; that all Walls in Front and Rear, as high as the first Story, be of the full Thickness of the Length of two Bricks, and thence upwards to the Garrets of the thickness of one Brick and an Half etc’.

The act set out structural requirements for wall thickness in relation to building height, and dimensions of beams and bressummers (or ‘Brest Summers’) in relation to length. The act provided for the election of surveyors by the mayor and company to ‘prevent irregular Buildings’. A further act (Rebuilding of London Act 1670) added a requirement for gutters and downpipes. ‘And bee it enacted That the Water from the tops of all Houses already built since the late Fire, and hereafter to be built and fronting or that shall front upon any the Streets, Lanes or Passages within the said City and Libertyes shall bee carryed and conveyed into the Channells by Pipes and Partie pipes (as the case shall require) to be brought downe on the Sides or Fronts of the said Houses.’ Foundations had to be inspected by a surveyor.

The 1770s

The system of 1666 persisted with varying degrees of observance and enforcement until the London Building Acts of 1772 and, most significantly, 1774: ‘An act or for the further and better regulation of buildings and party- walls and for the more effectually preventing mischief by fire within the cities of London and Westminster (etc)…’. This act replaced the ‘four sorts of buildings’ detailed in the 1666 act with seven classes or rates of buildings, with requirements prescribed for each class. For example, the definition of a first-rate building included dwelling houses which exceeded 900 sq ft on the ground floor, but the class also included other buildings such as churches, chapels and meeting houses, and buildings for the distilling of liquor, or the making of soap or turpentine, which exceeded three clear storeys above the ground or 31 ft. Walls, roofs and external decorations were to be of non-combustible materials, and window-frames and doorframes were to be set in reveals, and recessed by at least four inches from the front of the building.

The act set requirements for the thickness of walls and party walls and their foundations which were related to the rate of the building. Party walls were required to be carried at least 18 inches above the roof. There are many sections in the act covering party walls, their removal and their replacement, with the aim of compartmentalising fire and preventing its spread. There was a statutory role for surveyors in inspecting new buildings, and an oath for them to swear.

In the 19th century this system was criticised for promoting uniformity or monotony, although anyone who takes to the trouble to read the act itself will realise that it does nothing of the sort.

The 19th century

By the 1840s the threat of fire had been eclipsed by epidemic disease. The average life expectancy of children born into labouring class families in industrial towns was below 20 years. The causes were thought to be overcrowding, damp and bad air, and the remedies were thought to be light, drainage and ventilation. Numerous reports were published and campaigns organised, but action was painfully slow.

The provisions of the Town Improvement Clauses Act 1847 applied to England and Ireland. They included: Commissioners to appoint a surveyor and an inspector of nuisances. Notice of buildings and rebuildings to be given to the commissioners. A map of the district to be created. Powers created to set drainage rates. Sewers to be created and all new houses to be connected to drains. Doors and gates which open on to the street to be made to open inwards. Party walls to be carried up through the roof.

The Local Government Act 1858 gave local authorities power to make byelaws with respect to new streets and the provision of sewerage, the structure of walls of new buildings for securing stability and the prevention of fires, a sufficiency of space about buildings to secure free circulation of air, and the ventilation and drainage of buildings. It also created the power to remove, alter or pull down any work begun or done in contravention.

The Public Health Act 1875

The Public Health Act 1875 (which applied to England) and the Model Byelaws issued by the Local Government Board in 1877 were the most significant of the legislative developments, providing a comprehensive set of minimum requirements for fire protection, structural stability, drainage, prevention of damp, and ventilation. The act gave urban (but not rural) authorities powers (but not a duty) to make byelaws. The Local Government Board published model byelaws to assist the process, and at least two publishers provided guides, including case law. They set minimum width of streets intended as carriage streets (36 ft). Minimum separation between buildings (24 ft at front). Minimum rear open space 150 sq ft, and 10, 15, 20 or 25 ft in depth according to the height of the house. This was to secure a free circulation of air.

Internal ventilation and light: each room to have at least one window, minimum window area 1⁄10th of the floor area, half of this area to be openable. Minimum ceiling heights (7 ft). Restrictions on use of basements for dwelling rooms. Structural soundness and fire protection measures continued with specifications for foundations and wall thickness proportioned to the height of the wall, and restrictions on how wood was used in buildings. There were the usual requirement for non-combustible materials for walls and roofs: to be externally covered with slates, tiles, metal or other incombustible materials. Where a building was within 15 ft of another, the parapet was required to be taken 1 ft at least above the point at which the roof joined the wall. Requirements were given for dampcourses, and for cavity walls, including maximum width of cavity, minimum total width of wall, and the use of wall ties. Buildings over 80 ft required permission. There were other restrictions: the builder shall not construct any wall so that any part of it ‘shall overhang any part beneath it’. This was a block on jettying.

The act also covered the conduct of local authority business, requiring every urban authority to appoint fit and proper persons to be medical officer of health, surveyor, inspector of nuisances, clerk, and treasurer. In 1870, Sheffield, in an attempt to frustrate building control, had employed a surveyor who could neither read nor write.

Campaigns were mounted against the byelaws. The Byelaw Reform Association was formed to overturn them. Articles appeared in the Spectator, and the 1901 volume of Country Life ran a series of features, from a rural perspective, covering materials, overcrowding, the cottagers’ perspective, windows and the height of ceilings. One author complained that the byelaws permitted ‘no freedom, either in design or in the choice of materials’. This was untrue: the requirement was simply for non-combustible materials and certain minimum dimensions. The byelaws were in conflict with some traditional building methods, such as traditional timber-framing, wattle and daub, weatherboard and thatch, and jetties. To emphasise the point, the Country Life articles offered photographs of Ellen Terry’s house at Smallhythe in Kent, other traditional buildings in Surrey, and a low-slung Cornish cottage built of boulders, all of which would have been contrary to the byelaws.

The arts-and-crafts architecture movement was at its height at the time. Were speculative builders clamouring to cover England with neo-medieval hall houses? The answer is no. And while suburban-style, red-brick houses were appearing in rural areas and on the edge of market towns, it was not the fault of the byelaws, but simply the consequence of cheap transport, the wide availability of building materials, and a construction industry going about its normal business.

Another author in Country Life railed: ‘it can not be too strongly and definitely stated that the overcrowding in the great towns, concerning which there are not two opinions, is largely due to the London Building Act and the model bye-laws.’ If the author had meant that the overcrowding was due to the success of the byelaws in greatly extending life expectancy, they would have been right. But this was not the argument. The author asserted: ‘the bye-laws lead to overcrowding by needlessly increasing the expense of building’. In the 21st century the cost argument has been deployed in response to any requirement to improve the energy performance of buildings: more expensive construction means that, at a time of housing shortage, fewer houses will be built. Was the motive of the author one of serving the underhoused poor, or the interests of wealthy landowners wishing to provide accommodation for their labourers in the cheapest possible manner, while maximising their own profits?

There were also the usual complaints that the ‘pettifogging bureaucracy’ of the operation of the ‘stupid’ byelaws ‘adds unnecessarily to the number of officials, who, of course, have to be paid out of the rates’.

Despite these assaults, the byelaws made progress. But while they succeeded in easing many of the public health problems of Victorian England, they could not combat poor diet and smoke, smog and air pollution, which still meant that a substantial proportion of the population was underweight or deformed by rickets. During the 19th century a number of social reformers had campaigned for healthier, leafier lifestyles for the poor. Model settlements such as Saltaire or Bourneville demonstrated the possibilities, with a balance of houses, parks, allotments, schools and churches. These things were outside the scope of the model byelaws, which focused on small-scale detail. One can not create a town merely by controlling buildings, sewers and the width of streets.

The answer was the introduction of the planning system with the Housing, Town Planning etc Act 1909. This enabled local authorities, on application to the Local Government Board, to create town-planning schemes. The act established planning and building control as separate species of legislation, and as functions that would come to be administered by separate professions. The act permitted local authorities to vary the byelaws through town planning schemes approved by the Local Government Board. The overlap or tension between building regulations and planning continues to this day.

The Local Government Board was abolished in 1919, some of its key responsibilities being subsumed by the Ministry of Health. In that year Parliament passed the Housing Act (also called the Addison Act, associated with ‘homes fit for heroes’) and the government published its Manual on the Preparation of State-funded Housing Schemes. This advocated tree-lined streets, generous garden space and cavity walls to eliminate condensation.

The Public Health Act 1936 gave the power to all local authorities to make byelaws regarding buildings and sewers. This was a duty if so required by the minister, who was also given power to make local byelaws should the local authority fail.

Building regulations

The Building (Scotland) Act in 1959 gave the secretary of state the power to create building regulations. The first were published in 1963 and came into force in 1964. England and Wales followed suit.

The current system

The Building Act 1984 introduced ‘functional performance standards’, setting out what in legal terms is adequate, reasonable or appropriate, supported in the Approved Documents by statutory guidance on how these standards might be achieved.

What is the legal significance of statutory guidance as opposed to any government guidance? Case law holds that statutory guidance is a form of guidance that ‘should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses…’ and ‘…departure is acceptable only where there are clear and cogent reasons to do so’ (see the case of R (Munjaz) v Mersey Care NHS Trust).

The 1984 act gave the secretary of state powers to create building regulations, but in so doing ‘to have regard, in particular, to the desirability of preserving the character of protected buildings that are of special historical or architectural interest’. This act displays features of its antecedents: drainage, structural performance, fire, water supply and so on, and supervision, inspection and approval. The act introduced competition into building control, by creating ‘approved building inspectors’. It had a strategy of making the system self-funding.

We move from this period to the present day by way of the privatisation of the Building Research Establishment in 1997; the Building Regulations 2010 and Building (Approved Inspectors etc.) Regulations 2010; the Deregulation Act 2015; the climate change adaptation and mitigation duty; the 2030 Net Zero target; confusion over whether local authorities might legally set energy standards that exceeded the standards in the building regulations; the Grenfell Fire and the inquiry, where a QC stated that materials producers ‘were content to push hazardous products into the marketplace and sought to market them dishonestly’ (something that that regulatory system and its institutions had clearly failed to prevent); the Building Safety Act 2022; and proposals for a golden thread regarding information kept on the construction and modification of individual buildings.

Reflections

The story of building regulation and control is one of belated action in response to crisis, and of continuing tension between the protection of the public and private profit. From the time of Hammurabi, and before, some people have traded on the basis of their reputation and some on the basis of what they can get away with. Perhaps the majority sit somewhere in between.

It has been characterised as a battle between big government and private freedoms, with strong forces campaigning for deregulation. Small wonder that under-resourcing has been continual, and action dilatory. It is easy for government at all levels to appear to make improvements by introducing legislation, yet actually doing little, by the simple expedience of not employing fit and proper persons in sufficient numbers. The losers in this battle have been the private citizen and the public at large.

This story ends, for the moment, with the shameful tragedy of the Grenfell Fire, and the legacy of millions of new homes built over the past two decades that are wholly unfit for the wholly foreseen challenges of climate change.

Further reading

• All the Acts of Parliament and the model byelaws listed are available online on sites such as British History Online, the Wellcome Collection, and legislation.gov.uk
• Harper, Roger, The Evolution of the English Building Regulations, 1840–1914, PhD thesis in two volumes, https://etheses.whiterose.ac.uk/10303/
• Ley, Anthony (undated) Building Control UK: a historical review, www.irbnet.de/daten/iconda/CIB1598.pdf
• Ley, Anthony (1990) Building control: its development and application, 1840–1936, MPhil thesis for the Open University, https://oro.open.ac.uk/64588/1/27775874.pdf

This article originally appeared as ‘A brief history of building regulations and control’ in the Institute of Historic Building Conservation’s (IHBC’s) Context 172, published in June 2022. It was written by Robert Huxford, director of the Urban Design Group. Photos by Robert Huxford, Patrick Meyer Higgins (photo correction) and Rob Cowan.

--Institute of Historic Building Conservation

Related articles on Designing Buildings

• Building regulations.
• Civic Amenities Act.
• Conservation.
• Heritage.
• IHBC articles.
• Institute of Historic Building Conservation.
• Listed buildings.
• Planning permission.
• The history of conservation areas.
• The history of listed buildings.
• The history of timber construction in the UK

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