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Building Safety Act 2022

Contents

Schedule 6: Appeals and other determinations

  1. This Schedule contains amendments to the Building Act 1984 that relate to appeals and other determinations.
Effect
  1. This Schedule largely transfers appeals and determinations in the Building Act 1984 in England from the Secretary of State to the Building Safety Regulator or First-tier Tribunal, and from the magistrates’ court to the First-tier Tribunal.
  2. This is to align the appeals procedure for all building control decisions in England to sit with the Tribunal, and to accommodate the Building Safety Regulator’s position as a new building control authority and oversight body for other building control bodies.
  3. The First-tier Tribunal has expertise in hearings on complicated land and property matters. The transfer of existing work, plus other appeal rights we are creating (for example, compliance and stop notices during design and build, and compliance notices in occupation) will enable it to develop expertise in building and building safety matters.
  4. Accordingly, following discussion with the Ministry of Justice and the Tribunal, we are amending the Building Act 1984 as follows.
  5. Paragraphs are grouped together where they have similar effects.
Effect in Wales
  1. The Schedule will apply in Wales. Appeals against certain decisions by local authorities in Wales are to Welsh Ministers. References to Secretary of State now read as Welsh Ministers, and appeal references to magistrates’ court remain.

Paragraph 2 – amendment of section 10(6)

  1. This paragraph sets out that copies of representations should be sent to the Building Safety Regulator where a local authority in England refuses an application for relaxation and an appeal is brought against that refusal. Copies of representations should continue to be sent to the Welsh Ministers in Wales.

Paragraph 3 – amendment of section 20

  1. This paragraph sets out that any appeal of local authority action in England under section 20 of the Building Act 1984 must now be lodged with the Building Safety Regulator in the first instance. The Building Safety Regulator will take one decision only; this will not go through an internal review. If the developer remains unhappy with the Building Safety Regulator’s decision, the further appeal will go to the First-tier Tribunal.
  2. Any appeal of the Building Safety Regulator’s action under this provision must be lodged with the First-tier Tribunal in the first instance.
  3. Appeals will continue to be to the Welsh Ministers in Wales.

Paragraph 4 – amendment of section 39

  1. This paragraph sets out that any appeal of local authority action in England governed by section 39 of the Building Act 1984 must be lodged with the Building Safety Regulator in the first instance. The Building Safety Regulator will take one decision only; this will not go through an internal review. If the developer remains unhappy, the further appeal will go to the First-tier Tribunal.
  2. Any appeal of the Building Safety Regulator’s action under this provision must be lodged with the First-tier Tribunal in the first instance.
  3. Appeals will continue to be to the Welsh Ministers in Wales.
  4. Subsections (3) to (6) of section 39 are consequentially omitted.

Paragraph 5 – amendment of section 42

  1. This paragraph amends section 42 in regard of appeals under section 20, 39 and 50 since the Secretary of State will no longer give a decision in these proceedings. It also removes references to section 16 (passing or rejection of plans), which is being repealed.
  2. The paragraph inserts a new subsection (A1) permitting appeals to the High Court on points of law in regard of Secretary of State decisions on relaxations of building regulations; this merely replicates the current position. The right of appeal is extended to applicants, local authorities, and registered building control approvers.
  3. Appeals will continue to be to the Welsh Ministers in Wales.

Paragraphs 6 & 7 – amendment of section 43 and insertion of new s43A

  1. In these paragraphs, section 43 is omitted and a new section 43A is inserted. This relates to appeals under sections 20, 39 and 50 (use of materials, relaxations, and plans certificates).
  2. New s43A makes provision for the Building Safety Regulator or First-tier Tribunal, when determining an appeal under those sections, to give any directions it considers appropriate for giving effect to its ruling. It also confirms that where the Regulator determines an appeal in the first instance, that decision may be further appealed to the First-tier Tribunal.

Paragraph 8 – amendment of section 50

  1. This section will allow an appeal to the Building Safety Regulator where a registered building control approver (formerly known as an Approved Inspector) has refused to give a plans certificate. This replaces the existing determination process.
  2. Appeals under new subsection (2) of section 50 in Wales will go to the Welsh Ministers.

Paragraph 9 – transfer from magistrates’ court to the tribunal in England

  1. This paragraph transfers functions as above as listed in paragraph 9, Schedule 6.

Paragraphs 10 – 28

  1. These paragraphs insert "or tribunal" after "court", "a court", or "the court", and make similar consequential amendments, to accommodate the redirection of appeals and other decisions to the First-tier Tribunal in England.

Paragraph 29 - new section 105A, Enforcement of decisions of the First-tier and Upper Tribunal

  1. This is a new section that enables enforcement of Tribunal decisions, such that any decision of the First-tier or Upper Tribunal under or in connection with the Building Act 1984, other than a decision ordering the payment of a sum (which is dealt with separately under the Tribunals, Courts and Enforcement Act 2007), is to be enforceable with the permission of a county court in the same way as orders of a county court.
  2. Please also see note for section 107, which makes similar provision for decisions under or in connection with Part 4 of the Building Safety Act.

Paragraph 30 – new section 101A, Appeal: refusal to consider application etc on ground is higher-risk building work

  1. Under the new regulatory regime in England, the Building Safety Regulator will act as the building control authority for higher-risk buildings during construction, responsible for checking building work and verifying that it complies with regulations. Local authority building control, or registered building control approvers (formerly known as Approved Inspectors), will be the building control authority for buildings out of scope of the regime. In Wales, the local authority or designated local authority (under new section 91ZD, in section 32) will be the building control authority for higher-risk buildings.
  2. The definition of higher-risk buildings in England for the purposes of the Building Act 1984 is set out in section 31, with further detail to be set out in secondary legislation. It will cover multi-occupied residential buildings, care homes and hospitals of 18 metres or more in height or at least seven storeys (whichever is reached first). Detailed guidance will be issued to help developers understand the scope of the regime, assess whether their building falls into the definition and therefore who the correct building control authority will be. New section 120I, in the same section, confers power on the Welsh Ministers to define "higher-risk building" for Wales.
  3. There may be cases where a developer submits their application for building control approval to local authority building control or where a developer submits an initial notice or amendment notice to their local authority when the development may be in scope of the new regulatory regime. The local authority has the power to refuse to consider the building control application (in England) or an initial notice / amendment notice (in both England and Wales) on the basis that they have determined that the building is in scope of the regulatory regime, and therefore that the Building Safety Regulator must be the building control authority (in England) or the local authority is the building control authority (in Wales). This section provides for a person who intends to carry out the work to appeal the local authority’s decision that their building is in scope of the regime, to the Secretary of State (in England) or Welsh Ministers (in Wales), should they think that their building is not in scope of the regime. The appeal process will be set out in secondary legislation made under this section.
  4. The appellant can appeal to the High Court from the decision of the Secretary of State or Welsh Ministers on a point of law.
  5. Paragraphs 39(3) and 41(3) of Schedule 5 to the Act are consequential to this provision and make amendments to the Building Act 1984 with regards to initial notices and amendment notices. The effect of these changes would be that in such cases where the developer and registered building control approver wrongly submits such a notice then the default deemed acceptance rules in section 47(3) and section 51A(5) of the Building Act do not apply.

    Example

    The design, construction and refurbishment elements of the new regulatory regime will apply to "higher-risk buildings", defined as multi-occupied residential buildings, care homes and hospitals of 18 metres or more in height or at least seven storeys (whichever is reached first).

    A developer in England has received planning permission on a building one year prior to the introduction of the new regulatory regime. With their planning permission still valid and yet to start construction, the developer must figure out who the building control authority will be.

    The developer considers whether their building is a "higher-risk building". In this example, the developer has identified that the building has six storeys, which are all above ground level, and is 16m tall – one of the storeys is tall with a large mezzanine. The developer concludes that the building is therefore not in scope of the regime because they do not count the mezzanine as a seventh storey. The developer submits a building control application to local authority building control.

    Upon considering the building control application, the local authority assesses that the floor area of the mezzanine level in the building is over 50 percent of the floor area of the largest storey of the building and therefore counts as another storey. The local authority refuses to consider the building control application on the basis that the building is seven storeys tall and therefore in scope of the new regime.

    In this example, should the developer want to appeal this decision, they would submit an appeal to the Secretary of State. The person appointed by the Secretary of State to decide the appeal could decide whether the appeal will be considered via written representation or following a hearing. If, upon considering the appeal, the person appointed determines on behalf of the Secretary of State that the building is in scope of the regime, then that decision may be appealed to the High Court on a point of law only.

    If it is determined on appeal that the building would if built be a "higher-risk building" then the developer must submit their building control application to the Building Safety Regulator before starting construction, or change their plans.

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