Modifications etc. (not altering text)
C1Pt. 1 (ss. 1-46) restricted by Channel Tunnel Act 1987 (c. 53, SIF 102), ss. 31(1), 45, Sch. 7 Pt. VI para. 2
C2Pt. 1 (ss. 1-46) modified (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 60(2), Sch. 8 para. 18(1)
C3Pt. 1 (ss. 1-46) modified (17.7.1992) by S.I. 1992/1732, art. 4(1)
C4Pt. 1 (ss. 1-46) excluded (18. 12. 1996) by 1996 c. 61, s. 38, Sch. 10 para.7PPt. I (ss. 1-46) excluded (26.3.2001) by S.I. 2001/1149, art. 4(5) (subject to art. 1(3))
C5Pt. 1 (ss. 1-46) excluded (22.7.2008) by Crossrail Act 2008 (c. 18), Sch. 14 para. 8
C6Pt. 1 (ss. 1-46) excluded (24.9.2014) by The Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014 (S.I. 2014/2384), art. 1, Sch. 19 Pt. 1 para. 3
C7Pt. 1 (ss. 1-46) excluded (23.2.2017) by High Speed Rail (London - West Midlands) Act 2017 (c. 7), s. 70(1), Sch. 22 para. 1
C8Pt. 1 excluded (11.2.2021) by High Speed Rail (West Midlands - Crewe) Act 2021 (c. 2), s. 64(1), Sch. 22 para. 1(1)(a) (with Sch. 22 para. 1(2)(3))
(1)A person aggrieved by the giving of a section 36 notice may appeal to [F1a magistrates’ court] [F1the appropriate court or tribunal] F2....
(2)Subject to subsection (3) below, on an appeal under this section the court [F3or tribunal] shall—
(a)if it determines that the [F4local authority] [F4building control authority] were entitled to give the notice, confirm the notice, and
(b)in any other case, give the [F4local authority] [F4building 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 [F3or tribunal] is satisfied that—
(a)the [F5local authority] [F5building 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 [F3or 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 [F3or tribunal] a report that has been submitted to the [F6local authority] [F6building control authority] under section 37(1) above, the court [F3or 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
F1Words 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)
F2Words 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)
F3Words 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)
F4Words 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)
F5Words 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)
F6Words 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)