A Guide to Determinations and Appeals

Using the correct procedure

37. When reading this section you may find it helpful to refer to the 'key points' section and table relating to the main procedures and timings for determinations and appeals on pages 17-20.

General Considerations

38. As stated in paragraph 8, it is very important to discuss and clarify with the building control body the issues which are causing the difficulty over achieving compliance. Only if agreement cannot be reached should you decide whether it is appropriate to either apply to the Secretary of State/NAW for a determination, or to apply to the local authority for a relaxation or dispensation of a particular requirement of the Building Regulations. In addition, it is important to take account of the stage which your plans preparation or building work has reached, as this may well also constrain the action open to you.

39. As explained earlier, applications for determinations, and applications for relaxation or dispensation of requirements (and subsequent appeals to the Secretary of State/NAW), both work on the basis that as the applicant you accept that specific requirements are applicable to the building work in question; but there are important differences which have been explained in paragraph 27 and these need to be taken into account when deciding on the correct procedure for any particular case. However, because the requirements in the Building Regulations are now written in functional terms, a relaxation or dispensation of one or more of the functional requirements is unlikely in most cases to be relevant to the practical issue of complying with the Building Regulations in terms of health and safety. Moreover, a case for relaxing or dispensing with a requirement may be very difficult to argue, particularly if 'life safety' issues are at stake. There may be exceptions with respect to Parts L and M whose performance standards embrace more than just health and safety (see paragraphs 10, 29 and 30). But, by and large an application for determination made at the appropriate time (i.e. before work has substantially commenced) is likely to be the more appropriate course of action.

40. When deciding which is the more appropriate procedure, it is also important to understand what the end result may be of some appeals to the Secretary of State/NAW against a refusal by a local authority to relax or dispense with a requirement. In particular, if you have maintained from the outset that your proposals comply with the requirements in the Building Regulations but the building control body does not agree, the appropriate course of action is likely to be to apply for a determination. If instead you apply to the local authority for a relaxation or dispensation of a requirement this is likely to be a contradiction of what you have argued at the outset - namely, that your proposals did comply. It follows that a relaxation or dispensation is not what is required and that the application is, in effect, a misuse of the system. Where local authorities have refused applications to relax or dispense in these circumstances, a subsequent appeal to the Secretary of State/NAW may result in a decision which does no more than confirms their decision by dismissing the appeal. Moreover, because the Secretary of State/NAW is only obliged to include in an appeal decision such information as is appropriate to discharge his/their statutory functions, the decision will not necessarily deal with the issue of compliance of your proposals with the requirement as it stands (i.e. without a relaxation or dispensation) and you may be little further forward with resolving your problems.

Possibility of Enforcement Action

41. A local authority has a general duty to enforce the Building Regulations in its area. An authority has power under section 36 of the 1984 Act to issue an enforcement notice - referred to as a 'section 36 notice' - requiring the pulling down, removal or alteration of building work which does not comply with the Building Regulations, and can seek recourse to the courts as necessary. In addition, section 35 of the 1984 Act provides that the person responsible for the contravention is liable on summary conviction to a fine. Although a local authority will seek to deal with enforcement matters by informal means wherever possible, these are the ultimate sanctions to which they can have recourse in order to fulfil their statutory duty of ensuring the Building Regulations are enforced.

42. Where an approved inspector is providing the building control service the local authority's enforcement powers under sections 35 and 36 of the 1984 Act are disapplied to the building work concerned whilst it is in progress, and will continue to be disapplied if the approved inspector issues a final certificate after completion of the work. However, if the approved inspector considers during the course of construction, or at completion, that any of the work which you have carried out does not comply with any of the requirements of the Building Regulations, he/she has the power to issue a 'notice of contravention'. If this is not complied with within three months, the approved inspector will cancel the 'initial notice' given to the local authority (see paragraph 4 (iii)). The local authority can then take over the building control function, and they may then take enforcement action under sections 35 and/or 36.

Responses to Enforcement Action

43. If you have been unable to resolve a question of compliance of your building work with the building control body, and that body decides either during construction or on completion that contravention has occurred, then you may be served with an enforcement notice by the local authority as described in paragraph 41. If you wish to contest the notice you can do so in one of two ways. You may either appeal against the notice in the Magistrates' Court under section 40 of the 1984 Act and demonstrate your case for compliance there; or you may proceed under section 37 of that Act and counter the 'section 36 notice' by obtaining a written report from a suitably qualified person concerning the compliance of your work with a view to persuading the local authority to withdraw the notice.

44. A third, but separate option, which is sometimes adopted is to seek a relaxation or dispensation of a requirement in order for the completed building work to be deemed to achieve compliance. However, if you respond to the threat of enforcement in this way and at this late stage, but had originally maintained that your work was in compliance, you will run the risk of being seen to be changing your view by accepting that your work now does not comply with a particular requirement. Under such circumstances your application to the local authority to relax or dispense with a requirement, and any subsequent appeal to the Secretary of State/NAW, is likely to be more difficult to justify.

45. Paragraphs 43 and 44 serve to emphasise the importance of seeking a determination, or - where the circumstances can be shown to justify it - applying for a relaxation or dispensation of a requirement at the earliest opportunity.