Building Act 1984

Appeals in certain cases E+W

39 Appeal against refusal etc. to relax building regulations. E+W

(1) If a [F1 local authority] [F1 building control authority] refuse an application to dispense with or relax a requirement in building regulations that they have power to dispense with or relax, the applicant may by notice in writing appeal [F2 to the Secretary of State] within one month from the date on which the [F1 local authority] [F1 building control authority] notify the applicant of their refusal.

[F3 (1A) The appeal is to be made to—

(a) the regulator, in the case of a refusal by a local authority for an area in England;

(b) the tribunal, in the case of a refusal by the regulator;

(c) the Welsh Ministers, in the case of a refusal by a local authority for an area in Wales.]

(2) If, within—

(a) a period of two months beginning with the date of an application, or

(b) such extended period as may at any time be agreed in writing between the applicant and the [F4 local authority] [F4 building control authority],

the [F4 local authority] [F4 building control authority] do not notify the applicant of their decision on the application, subsection (1) above applies in relation to the application as if the [F4 local authority] [F4 building control authority] had refused the application and notified the applicant of their decision at the end of the said period.

(3) [F5 The notice of appeal shall set out the grounds of appeal, and a copy of the notice of appeal shall be sent to the local authority.]

(4) [F5 The local authority, on receiving a copy of the notice of appeal, shall at once transmit to the Secretary of State a copy of the application and a copy of all the documents furnished by the applicant for the purposes of his application.]

(5) [F5 The local authority shall at the same time give to the Secretary of State in writing any representations that they desire to make as regards the appeal, and shall send a copy to the appellant.]

(6) [F5 If the Secretary of State allows the appeal, he shall give such directions for dispensing with or relaxing building regulations as may be appropriate.]

Textual Amendments

F1 Words in s. 39(1) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 5 para. 34; S.I. 2023/993, reg. 2(n)(xi) (with reg. 4)

F2 Words in s. 39(1) omitted (1.10.2023 except in relation to W.) by virtue of Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 4(2); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F3 S. 39(1A) inserted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 4(3); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F4 Words in s. 39(2) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 5 para. 34; S.I. 2023/993, reg. 2(n)(xi) (with reg. 4)

F5 S. 39(3)-(6) omitted (1.10.2023 except in relation to W.) by virtue of Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 4(4); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

[F6 39A Appeals against compliance notices and stop notices etc E+W

(1) A person to whom a compliance notice has been given may appeal to the appropriate court or tribunal.

(2) Where an appeal under subsection (1) is made—

(a) the compliance notice is of no effect pending the final determination or withdrawal of the appeal, and

(b) the specified period mentioned in section 35B(2) is treated as extended by the period—

(i) beginning with the day on which the appeal is made, and

(ii) ending with the day on which the appeal is finally determined or withdrawn.

(3) A person to whom a compliance notice has been given may apply to the appropriate court or tribunal for an extension of the period for the doing of the thing specified in the notice.

(4) Subsection (2) applies in relation to such an application as it applies in relation to an appeal under subsection (1).

(5) A person to whom a stop notice has been given may appeal to the appropriate court or tribunal.

(6) Where an appeal under subsection (5) is made—

(a) the appellant may apply to the appropriate court or tribunal for a direction that the stop notice is of no effect pending the final determination or withdrawal of the appeal, and

(b) unless and until any such direction is given, the stop notice continues to have effect despite the making of the appeal.]

Textual Amendments

F6 S. 39A inserted (6.4.2023 for specified purposes except in relation to W., 5.9.2023 for W. for specified purposes, 1.10.2023 in so far as not already in force except in relation to W.) by Building Safety Act 2022 (c. 30), ss. 38(2), 170(4)(b)(c); S.I. 2023/362, reg. 3(1)(q); S.I. 2023/914, reg. 2(b)(v); S.I. 2023/993, reg. 2(h)

40 Appeal against section 36 notice. E+W

(1) A person aggrieved by the giving of a section 36 notice may appeal to [F7 a magistrates’ court] [F7 the appropriate court or tribunal] F8 ....

(2) Subject to subsection (3) below, on an appeal under this section the court [F9 or tribunal] shall—

(a) if it determines that the [F10 local authority] [F10 building control authority] were entitled to give the notice, confirm the notice, and

(b) in any other case, give the [F10 local authority] [F10 building control authority] a direction to withdraw the notice.

(3) If, in a case where the appeal is against a notice under section 36(2)

above, the court [F9 or tribunal] is satisfied that—

(a) the [F11 local authority] [F11 building control authority] were entitled to give the notice, but

(b) in all the circumstances of the case the purpose for which was enacted the section of this Act by virtue of which the notice was given has been substantially achieved,

the court [F9 or tribunal] may give a direction under subsection (2)(b) above.

(4) An appeal under this section shall be brought—

(a) within 28 days of the giving of the section 36 notice, or

(b) in a case where the person to whom the section 36 notice was given gives notice under section 37(1)(a) above, within 70 days of the giving of the section 36 notice.

(5) Where an appeal is brought under this section—

(a) the section 36 notice is of no effect pending the final determination or withdrawal of the appeal, and

(b) section 36(3) above has effect in relation to that notice as if after the words “28 days” there were inserted the words “(beginning, in a case where an appeal is brought under section 40 below, on the date when the appeal is finally determined or, as the case may be, withdrawn)”.

(6) If, on an appeal under this section, there is produced to the court [F9 or tribunal] a report that has been submitted to the [F12 local authority] [F12 building control authority] under section 37(1) above, the court [F9 or tribunal], in making an order as to costs, may treat the expenses incurred in obtaining the report as expenses incurred for the purposes of the appeal.

Textual Amendments

F7 Words in s. 40(1) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 9(h); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F8 Words in s. 40(1) repealed (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 279, Sch. 10; S.I. 2005/910, art. 3(y)

F9 Words in s. 40 inserted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 14; S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F10 Words in s. 40(2) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 5 para. 35; S.I. 2023/993, reg. 2(n)(xi) (with reg. 4)

F11 Words in s. 40(3) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 5 para. 35; S.I. 2023/993, reg. 2(n)(xi) (with reg. 4)

F12 Words in s. 40(6) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 5 para. 35; S.I. 2023/993, reg. 2(n)(xi) (with reg. 4)

41 Appeal to Crown Court. E+W

(1) Where a person—

(a) is aggrieved by an order, determination or other decision of a magistrates’ court [F13 under this Part of this Act, or under Part IV of this Act as it applies in relation to this Part,] [F13 under, or under an instrument made under, this Part or Part 4 as it applies in relation to this Part,] and

(b) is not by any other enactment authorised to appeal to the Crown Court.

he may appeal to the Crown Court.

(2) Subsection (1) above does not confer a right of appeal in a case in which each of the parties concerned might under this Act have required that the dispute should be determined by arbitration instead of by a magistrates’ court.

Textual Amendments

F13 Words in s. 41(1)(a) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 5 para. 36; S.I. 2023/993, reg. 2(n)(xi)

42 Appeal and statement of case to High Court in certain cases. E+W

[F14 (A1) Where the Secretary of State gives a decision on an application for a direction under section 8, any of the following may appeal to the High Court against the decision on a point of law—

(a) the applicant;

(b) the local authority;

(c) the registered building control approver.]

(1) Where the [F15 Secretary of State gives] [F15 Welsh Ministers give] a decision in proceedings—

(a) on an appeal under section 20 or 39 above,

(b) [F16 on a reference under section 16 above or 50 below]

[F16 on an appeal under section 50,] or

(c) on an application for a direction under section 8 above where the power of giving the direction is not exercisable by the [F17 local authority] [F17 building control authority],

the relevant person or the [F17 local authority] [F17 building control authority] or, as the case may be, the approved inspector may appeal to the High Court against the decision on a point of law.

(2) In subsection (1) above, “the relevant person” means—

(a) as regards an appeal under the said section 20 or 39, the appellant,

(b) [F18 as regards a reference under the said section 16 or 50, the person on whose application the reference was made,]

[F18 as regards an appeal under section 50, the person on whose application the appeal was made,]

(c) as regards such an application as is mentioned in subsection (1)(c) above, the applicant.

(3) At any stage of the proceedings on such an appeal [F19 , reference] or application as is mentioned in subsection [F20 (A1) or] (1) above—

(a) the [F21 Secretary of State] [F21 appropriate national authority] may state a question of law arising in the course of the proceedings in the form of a special case for the decision of the High Court, and

(b) a decision of the High Court on a case so stated is deemed to be a judgment of the court within the meaning of section 16 of the [F22 Senior Courts Act 1981] (appeals from the High Court to the Court of Appeal).

(4) In relation to proceedings in the High Court or the Court of Appeal brought by virtue of this section, the power to make rules of court includes power to make rules—

(a) prescribing the powers of the High Court or the Court of Appeal with respect to the remitting of the matter with the opinion or direction of the court for re-hearing and determination by the [F23 Secretary of State] [F23 appropriate national authority], and

(b) providing for the [F23 Secretary of State] [F23 appropriate national authority], either generally or in such circumstances as may be prescribed by the rules, to be treated as a party to any such proceedings and to be entitled to appear and to be heard accordingly.

(5) No appeal to the Court of Appeal shall be brought by virtue of this section except with the leave of the High Court or the Court of Appeal.

(6) In this section, “decision” includes a direction, and references to the giving of a decision shall be construed accordingly.

(7) [F24 Until such day as the Secretary of State may by order appoint, subsections (1) and (2) above have effect as if—

(a) in subsection (1)(b), for “section 16 above or 50 below” there were substituted “section 30 above”,

(b) in subsection (1), the words “or, as the case may be, the approved inspector” were omitted, and

(c) in subsection (2)(b), for “section 16 or 50” there were substituted “section 30” and the words “(jointly with the local authority)” were inserted after

“application”.]

Textual Amendments

F14 S. 42(A1) inserted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(2); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F15 Words in s. 42(1) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(3)(a); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F16 S. 42(1)(b) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(3)(b); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F17 Words in s. 42(1) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 5 para. 37; S.I. 2023/993, reg. 2(n)(xi) (with reg. 4)

F18 S. 42(2)(b) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(4); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F19 Word in s. 42(3) omitted (1.10.2023 except in relation to W.) by virtue of Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(5)(a); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F20 Words in s. 42(3) inserted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(5)(b); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F21 Words in s. 42(3)(a) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(5)(c); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F22 Words in s. 42(3)(b) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), s. 148(1), Sch. 11 para. 1(2); S.I. 2009/1604, art. 2(d)

F23 Words in s. 42(4) substituted (1.10.2023 except in relation to W.) by Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(6); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

F24 S. 42(7) omitted (1.10.2023 except in relation to W.) by virtue of Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 5(7); S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

Commencement Information

I1 S. 42(4)-(6) in force at 1.12.1984 for specified purposes, see s. 134(1)(a)

43 Procedure on appeal to Secretary of State on certain matters. E+W

[F25 (1) On an appeal to the Secretary of State under section 20 or 39 above, the Secretary of State may at his discretion afford to the appellant and the local authority an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(2) On determining such an appeal, the Secretary of State shall give such directions, if any, as he considers appropriate for giving effect to his determination.

(3) Without prejudice to paragraph 10(c) of Schedule 1 to this Act, building regulations may, in connection with such an appeal, include such supplementary provisions with respect to procedure as the Secretary of State thinks fit.]

Textual Amendments

F25 S. 43 omitted (1.10.2023 except in relation to W.) by virtue of Building Safety Act 2022 (c. 30), s. 170(4)(b)(c), Sch. 6 para. 6; S.I. 2023/993, reg. 2(o)(i) (with reg. 6)

Commencement Information

I2 S. 43(3) in force at 1.12.1984 for specified purposes, see s. 134(1)(a)

[F26 43A Appeals under sections 20, 39 and 50: England E+W

(1) This section applies to an appeal to the regulator or the tribunal made under section 20(5), 39 or 50(2).

(2) On determining the appeal, the regulator or the tribunal may give any directions it considers appropriate for giving effect to its determination.

(3) Where the appeal is determined by the regulator, a relevant person may appeal to the tribunal against the regulator’s decision (and subsection (2) applies in relation to this appeal).

(4) “Relevant person” means—

(a) the appellant;

(b) the local authority or registered building control approver.]

Textual Amendments

F26 S. 43A inserted (1.10.2023) by Building Safety Act 2022 (c. 30), s. 170(4)(c), Sch. 6 para. 7; S.I. 2023/993, reg. 2(o)(i) (with reg. 6)