- Building Regulations
- Determinations & appeals
- Appeals - further information
Appeals - further information
The Building Act 1984 gives the power to a local authority to relax or dispense with a particular requirement in Schedule 1 to the Building Regulations.
Therefore, where you believe that the particular circumstances of your case are such that one or more requirements in the Building Regulations should either be relaxed or dispensed with altogether, so that your plans or building work can meet the requirements, the 1984 Act enables you to apply to the local authority for a relaxation or a dispensation of one or more of these requirements.
If the local authority refuses your application you have a right of appeal under section 39 of the 1984 Act to the Secretary of State for Communities and Local Government or the Welsh Ministers in the Welsh Assembly Government (as appropriate) against that decision, provided you do so within one month of the date of being notified.
A relaxation or dispensation application may be made, and any subsequent appeal lodged, irrespective of whether the building control service is being carried out by a local authority or an approved inspector.
Key points to consider if you are considering lodging an appeal to the Secretary of State/Welsh Ministers against a refusal by the local authority to relax or dispense with a requirement:
you must accept that the particular requirement of the Building Regulations in question is applicable but that your plans or building works do not comply with that requirement in part or in whole
you must believe that the particular circumstances of your plans or building work means that the applicable requirement of the Building Regulations is either too onerous or inappropriate (i.e. that it should be relaxed or dispensed with respectively).
the appeal process is the second stage in seeking to achieve what you want. The first stage is for you to make an application to the local authority asking them either to relax or to dispense with the requirement. Only if the local authority refuses will you need to consider using your right of appeal to the Secretary of State/Welsh Ministers
unlike a determination, an application to the local authority to relax or dispense with a requirement can be made at any time from before the building work starts (i.e. at design stage and before you deposit 'full plans' or give a 'building notice' or employ an approved inspector), during construction, or after it has been completed. An appeal against the local authority's decision must be made within one month of the date they let you know of the decision
the guidance in the Approved Documents is only that, and the fact that your plans or building works do not follow it does not necessarily mean that they do not comply with the requirements of the Building Regulations. You should therefore not immediately jump to the conclusion that the only solution is to apply for a relaxation or dispensation of a requirement. Although the local authority or approved inspector should take account of the guidance in the Approved Documents, they must ultimately judge your proposals against the requirements in the Building Regulations and not the Approved Documents.
your application to the local authority and any subsequent appeal against a refusal must make it clear whether you are seeking a relaxation or a dispensation; specify the particular requirement in question; and set out your case giving full justification
when the local authority has made a decision, you must obtain formal notification of this. If they have refused your application they should say why, and inform you of your right to appeal to the Secretary of State/Welsh Ministers within a time limit of one month. It will be important to address the local authority's reasons for refusal if you proceed with an appeal.
no fee is payable for an appeal
once the Secretary of State/Welsh Ministers has accepted your appeal, he/they will consult all parties before giving it careful consideration and coming to a decision
You should particularly bear in mind that:
the requirements in the Building Regulations are referred to as 'functional requirements' and have evolved over the years from earlier versions of the regulations where the requirements were far more prescriptive. They are primarily concerned with health and safety, and are expressed in terms of what is 'reasonable', 'adequate' or 'appropriate'. Appealing against a refusal to grant a relaxation or a dispensation is therefore likely to be very difficult to argue unless very special circumstances exist. You will particularly need to have regard to 'life safety' issues
do not rely on the appeal process to deal with an unresolved matter which really should have been referred to the Secretary of State/Welsh Ministers at an earlier stage as a determination. Remember that if the Secretary of State/Welsh Ministers dismisses your appeal the requirement in question will still apply and your building work will still not comply with it. Moreover, in considering your appeal the Secretary of State/Welsh Ministers is only obliged to include in the decision such information as is appropriate to discharge their statutory function. The decision on an appeal will therefore not necessarily give an indication of compliance of your proposals with the applicable requirement as it stands (i.e. without a relaxation or dispensation).