A Guide to Determinations and Appeals

Applications for Determinations

15. It is a logical pre-requisite for a valid application for determination that you accept that the particular requirement of the Building Regulations in question applies to your proposed building work and that you believe that your plans comply with it. You should bear in mind that the procedure is a determination and not some form of 'appeal' against any decision made by the building control body. You should therefore only refer to your application as a 'determination' and not confuse it with the appeal procedure which is applicable only to relaxations and dispensations.

Procedures and Timing

16. There are provisions in the 1984 Act to enable you to apply for a determination irrespective of whether you are using the local authority or an approved inspector to provide the building control service. However, as mentioned in paragraph 5, the determination procedure is not available where the 'building notice' procedure has been used.

17. If you are using the local authority building control service section 16(10)(a) of the 1984 Act provides that once plans have been deposited for approval under the 'full plans' procedure, and a question arises during that procedure as to whether the plans of the proposed work are in conformity with the Building Regulations, then that question may be referred by you to the Secretary of State/NAW for determination. The large majority of questions relate to the individual requirements in Schedule 1 to the regulations. In some cases the question will arise if the local authority raises doubts before it gives a formal decision on the plans, in others not until a decision to reject the plans has been made. In the former case the local authority will still be required to proceed to a decision on your 'full plans' application within the prescribed five weeks or, where you agree, within two months - notwithstanding the fact that you have applied for a determination.

18. If you are using the services of an approved inspector the procedure is slightly different. Under section 50(2) of the 1984 Act you may ask your inspector for a 'plans certificate'. He/she must then formally examine your plans to be satisfied that they are sufficiently complete, and do not show any contravention of the Building Regulations. If satisfied then he/she must give to you and the local authority a certificate to that effect. If on the other hand the approved inspector does not believe that your plans comply with the Building Regulations he/she will be unable to give such a certificate. Your inability to obtain a certificate will be treated in the same way as a local authority's refusal to pass deposited 'full plans', and if the question regarding compliance remains unresolved you may refer it to the Secretary of State/NAW for determination.

19. In making your determination application you must clearly set out your case as to why you believe that your plans comply with the particular requirement of the Building Regulations in question, and also address the comments made by the building control body. It may be relevant to refer to any guidance contained in the supporting Approved Document, or to any other technical guidance or material which you believe is supportive of your case. A determination fee is payable (see paragraph 3 of Annex B).

Validity of Applications

20. Section 16(10)(a) of the 1984 Act confers jurisdiction on the Secretary of State in any case where a question has arisen regarding the conformity of formative plans of the proposed work with the Building Regulations. The Secretary of State/NAW will not, therefore, as a general rule accept applications for a determination under this section in relation to building work which has substantially commenced at the date on which an application is made. If, however, you consider that there are exceptional reasons justifying a later application, the Secretary of State/NAW will consider those reasons carefully. But, when work has commenced and reached a stage where it has foreclosed on the options necessary to achieve compliance of the particular element of the work in question, an application for determination at this stage is unlikely to qualify as one relating to plans of proposed work and would therefore not be accepted.

Local Authority Conditional Approvals

21. This sub-section only applies where the local authority is the building control body. It is relevant to the comparatively rare situation where a determination relates to the conditions which a local authority has applied to a 'full plans' approval.

22. Where 'full plans' of proposed work are defective such that it would contravene any of the Building Regulations, under sub-sections 16(2)-(5) of the 1984 Act the local authority may either reject the plans or pass them subject to one or other, or both, of two types of conditions. The two conditions are that:

(i) specific modifications should be made to the deposited plans; and

(ii) specified further plans must be deposited.

A 'conditional approval' can therefore be a useful means of expediting an approval rather than the local authority rejecting the plans outright. However, the local authority is required to seek your agreement to the imposition of conditions. Any request by you for the imposition of a condition, or any consent by you to the imposing of a condition, must be in writing.

23. Because your consent, as the applicant, is required before a condition can be attached to the approval of your 'full plans' application, the general assumption is that a 'conditional approval' is unlikely to be the subject of a subsequent application for a determination.

However, there may be circumstances where although you have had misgivings about the imposition of particular conditions you nevertheless have agreed to them in order to secure a valid 'full plans' approval. The alternative course of refusing to accept the conditions is likely to lead to the local authority having to reject your plans if, for no other reason than, the matter cannot be resolved within the time period which the authority is required to come to a decision. Given that the Secretary of State and the NAW can, and usually do, consider applications for determinations after a local authority has come to a decision on a 'full plans' application, they are prepared to consider applications for determinations relating to the imposition of conditions.

24. Details of how to proceed with an application to the Secretary of State/NAW for a determination, and guidance on what it should contain, are given in Annex B. This also explains how your application will be processed and the timescale involved.