A Guide to Determinations and Appeals

Key points to consider

The following key points summarise what you should bear in mind before applying for a determination or lodging an appeal. The main stages of the procedures are summarised in the table on page 20.

Determinations

If you are considering applying to the Secretary of State/NAW for a determination, the main points to bear in mind are:

• 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.
• Your determination application must contain the information set out in Annex B, including a determination fee (see paragraph 3).
• 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.

Appeals

If you are considering lodging an appeal to the Secretary of State/NAW against a refusal by the local authority to relax or dispense with a requirement, the main points to bear in mind are:

• 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 appealprocess 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/NAW.
• 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. The full information required for an appeal is set out in Annex C.
• 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/NAW 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/NAW 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 (see Annex A) 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/NAW at an earlier stage as a determination. Remember that if the Secretary of State/NAW 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/NAW 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).