- Building Regulations
- Determinations & appeals
- What is a determination?
What is a determination?
Where the local authority or approved inspector says that your plans do not comply with one or more of the requirements of the Building Regulations but you believe that they do, the Building Act 1984 provides a specific procedure for the Secretary of State for Communities and Local Government (for cases arising in England) or the National Assembly for Wales (for cases arising in Wales) to resolve such matters for you. This is referred to as a determination.
Slightly different determination procedures apply according to which type of building control service you are using, but details of both procedures are set out below.
However, the determination procedure is not available for building work being progressed by a 'building notice'.
Key points to consider if you are considering applying to the Secretary of State/NAW for a determination:
you must accept that the particular requirement of the Building Regulations in question applies to your proposed building work and you should believe that your plans comply with it
you can only use the determination procedure if you have submitted 'full plans' and other relevant information to the local authority or approved inspector for them to approve (in the case of a local authority), or issue a 'plans certificate' (in the case of an approved inspector)
because determinations are tied to the 'full plans' submission procedures relating to proposed work, you can normally only apply for a determination before the building work has substantially commenced
if you are using the local authority building control service you can apply to the Secretary of State/NAW for a determination at any time after you have submitted your plans - i.e. usually after the authority has looked at the plans and informally told you that they are not acceptable; or after they have sent you a notice formally rejecting the plans. If you are using the services of an approved inspector you may apply for a determination once he/she has confirmed that he/she is unable to issue you with a 'plans certificate'. The sooner you are able to apply for a determination the less delay there will be to your building work
the guidance in the Approved Documents is only that, and the fact that your plans do not follow it does not necessarily mean that they do not comply with the requirements of the Building Regulations. 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
- a fee is payable for a determination - From 1 April 2010, the fee payable for determination applications will be calculated on the basis of half of the local authority's plan charge, excluding VAT, subject to a minimum limit of £100 and an upper limit of £1,000 (with the exception for applications relating to building work solely required for disabled persons for which there is no fee).
once your application is accepted, all parties are consulted before the Secretary of State/NAW gives it careful consideration and gives you and the local authority, or approved inspector, a decision ('the determination')
You should particularly bear in mind that:
usually the determination process is likely to be the most appropriate way for you to resolve a difficulty over Building Regulations compliance with the local authority or approved inspector. It is therefore essential that you proceed with a determination as soon as it becomes apparent that one may be necessary and before the building work has substantially commenced.
if you do proceed with the building work in the face of warnings from the local authority or approved inspector about the compliance of your work they would be unable to give you a 'completion certificate'/'final certificate' (as appropriate), and the local authority may take enforcement action requiring you to modify or demolish your defective work.