Chapter 11

Gateways – Inspections, Regularisation, Review of decisions, Appeals, Section 30A Procedures and Miscellaneous provisions

This chapter – at a glance

  • Parts 6 and 7 of The Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, referred to in this chapter as the Regulations
  • Inspections - Regulation 46
  • Regularisation of unauthorised building work - Regulation 47
  • Regulation 47(3) restriction
  • The Review and Appeal Process- Regulations 48-49
  • Review process and timeline:
  • Review Outcome
  • Appeal Process
  • Section 30A Applications - Regulations 50-56
  • Eligible applications
  • Application process
  • Determination process
  • Appeal
  • Part 7 - Miscellaneous
  • Exempt work - Regulation 57
  • Requirement for Completion certificate before occupation and transitional cases - Regulation 58
  • Type A and Type B Transitional work
  • BSR’s power to make Directions- Regulation 59
  • Regulations 60-65

Part 6 - Inspections, Regularisation, Review of decisions, Appeals and S.30A procedures.

Part 6 of the Regulations grants the BSR authority to conduct inspections. Additionally, it establishes a mechanism for obtaining retrospective approval for certain unauthorized completed building projects. It also outlines the procedures for:

  • the BSR to reassess its decisions;
  • appealing decisions made by the BSR; and
  • seeking a decision from the Secretary of State (DLUHC) in cases where the BSR fails to come to a decision.

Inspections - Regulation 46

Regulation 46 grants the BSR certain inspection rights and gives the BSR the authority to:

  • demand inspections to be conducted, and for inspection records to be provided;
  • request the laying open of building work for inspection purposes; and
  • seek information related to adherence to the Building Regulations.

These actions can be initiated as often as deemed necessary by the BSR to ensure they can effectively evaluate the compliance of HRB work and ensure compliance with all Building Regulations.

Regularisation of unauthorised building work - Regulation 47

Regulation 47 applies where it is discovered that unauthorised building work occurred after 11 November 1985. The owner (referred to in Regulation 47 as the ‘applicant’) can submit a written application for a regularisation certificate in relation to the unauthorised building work (but note that major changes cannot be regularised).

The application must include a statement of compliance, a description and plan of the unauthorised work, and the owners/applicant’s confirmation (if the application is made on their behalf). The BSR can also require any additional steps that it deems necessary.

Outcome 1: The BSR determines that additional building work is needed for compliance:

In this case, the application is rejected, and a separate building control approval application must be made for the additional work.

Should this occur, then the BSR has the power to request more information to be submitted as part of determining whether to grant a regularisation certificate. It is also worth noting that any person involved in the works is not exempt from the BSR’s enforcement powers, and it remains an offence to undertake works without the proper approvals.

Outcome 2: The BSR is satisfied that all requirements have been met and no additional work is required:

The BSR may then issue a regularisation certificate as evidence of compliance.

Once a regularisation certificate is granted, Part 2-5 of the Regulations (which covers building control approval for HRB work and processes) cease to apply to the building work in question.

Within 5 days of receiving a regularisation certificate, non-domestic clients must provide information about the building work to the relevant AP and RP. The information which needs to be submitted is set out in Regulation 47. Note however, domestic clients are exempt from this requirement.

Regulation 47(3) restriction

In cases where the construction is part of a project that has already received building control approval, and the unauthorised work should have undergone a change control application because it represents a significant alteration, then regularisation will not be an option. This restriction ensures that regularisation cannot be used to bypass the established approval processes.

The Review and Appeal Process- Regulations 48-49

Regulation 48 specifies the various decisions made by the BSR that can be reviewed. These include:

  • decisions to reject building control approval applications;
  • change control applications;
  • completion certificate applications; and
  • regularisation certificate applications.

The regulation also extends to decisions to specify a controlled change as being a major or notifiable change and decisions to refuse a request to vary a requirement. Regulation 48(2) outlines a list of persons who are entitled to request a review.

Review process and timeline:

  • The person seeking the review (or their representative) must provide notice in writing to the BSR within 21 days of being notified of the decision.
  • The notice must include the following information: contact details, the relevant building information, reasons for the review, and any additional information that is relevant but not available at the time of the original decision.
  • The BSR must notify the person requesting the review of the outcome within 13 weeks.
  • Where the review upholds the original decision, the BSR must provide reasons for that decision.
  • Where the review leads to a variation of the decision, a new decision is issued.

Appeal Process:

Regulation 49 sets out the appeal process. If an individual is not satisfied with the BSR’s decision following review, it can appeal to the First-tier Tribunal. The appeal must be lodged within 21 days of the BSR’s review decision.

The First-tier Tribunal can grant an appeal if it finds the BSR’s decision was either factually wrong, legally wrong, procedurally flawed, or unreasonable. If the appeal is allowed, the Tribunal has the authority to revoke or amend the decision.

Section 30A Applications - Regulation 50-56

Section 30A applications refer to a process in the Building Act where applicants can seek a determination of their original application if the BSR fails to make a timely decision on certain building-related applications.

Eligible applications: building control approval applications, change control applications, completion certificate applications, and regularisation applications.

Application process:

  • Applicants can make a written application to the DLUHC if the BSR does not make a decision within the statutory timeframe.
  • A Section 30A application must be made within a 6 week timeframe.
  • Before submitting a Section 30A application, applicants must first notify the BSR at least 2 working days in advance, but not before the expiry of the original decision-making period.
  • Regulation 51(3) outlines the various documents that the application must include, and Regulation 53 sets out the process for applications made by electronic submission.

Determination process:

Section 30A applications are determined by written representations. The BSR has the opportunity to provide written representations, and the DLUHC may also involve other parties in the process. Site visits, testing, or inspections may be conducted if deemed necessary.

There is no fixed timeframe for the DLUHC to make a determination. Section 30A applications generally serve as a last resort for unusual cases where no decision has been issued, and no extension can be agreed upon.

If a non-determination application is not made within the 6-week period set out in Regulation 51, and the BSR has not issued a decision, the application is deemed as having been rejected.

Appeal process:

Applicants affected by the DLUHC’s decision can appeal to the First-tier Tribunal. The appeal must be made within 21 days of receiving the decision. The grounds for appeal are the same as those highlighted in Regulation 49.

Part 7 - Miscellaneous

Part 7 covers miscellaneous topics that are related to the Building Regulations. These include exemptions from procedural Building Regulations, enforcement provisions, consequential amendments to other regulations, and transitional provisions.

Exempt work - Regulation 57

Regulation 57 specifies that the only work exempt from the Regulations is the building work outlined in Schedule 2.

Exempt work listed in Schedule 2 is that which closely resembles the exempt work defined in Schedule 4 of the Regulations. Work such as replacing a shower, adding light fittings, or installing new cabling to an existing circuit. This exempt work is considered low-risk and is not subject to the procedural requirements of the Building Regulations.

Requirement for Completion certificate before occupation and transitional cases - Regulation 58

This Regulation outlines the requirement for a completion certificate to be obtained before occupation, particularly for HRBs, and relates to a power under Section 76 of the BSA. This power makes it an offence for an accountable person to allow the occupation of residential units in the HRB without a valid completion certificate. More specifically:

  1. If it is a new HRB under construction, the offence occurs when any residential unit is occupied without a prior issuance of a completion certificate.
  2. When the HRB is being created through a material change of use or extension, the offence takes place if any of the new residential units are occupied without a completion certificate.
  3. Where additional residential units are being introduced for HRBs, the offence arises if any residential units, apart from those already existing in the building, are occupied without a completion certificate.

Type A and Type B Transitional work:

Regulation 58(4) introduces two types of transitional work: “type A” and “type B”.

“Type A Transitional Work” is defined as work that meets one of the following criteria:

  • Completed before 1 October 2023 and occupied on or after that date.
  • Completed before 6 April 2024, and either paragraph 1 or paragraph 12 of Schedule 3 applied to the work, but paragraph 3 or 4 of that Schedule did not apply.
  • Completed on or after 6 April 2024, and paragraph 7 of Schedule 3 applied to the work.

“Type B Transitional Work” refers to work completed on or after 6 April 2024, where one of the following conditions is met:

  • Paragraph 5 of Schedule 3 applies, which includes cases of sufficiently progressed work where an initial notice is cancelled before 6 April 2023.
  • Paragraph 10 of Schedule 3 applies, where work has progressed sufficiently, but the approved inspector is not a registered building control approver.
  • Paragraph 11 of Schedule 3 applies, where the work has progressed sufficiently and then the initial notice ceases.

For both Type A and Type B Transitional Work, specific certificates issued under existing Building Regulations can satisfy the requirement under Section 76 of the BSA, to have a completion certificate before occupation. Regulation 58(2) outlines the certificates required for Type A Transitional Work, and Regulation 58(3) prescribes the certificates that will fulfil Type B Transitional Work.

BSR’s power to make Directions – Regulation 59

Regulation 59 gives the BSR the power to make a direction as to the way in which certain applications, notices, requests for approval, and other documents are given, including setting out when they must be provided electronically.

The BSR is required to specify the effective date of the directive, under Regulation 59(2), which must be at least 5 working days after its publication. Regulation 59 further empowers the BSR to amend or cancel previously issued directives through subsequent directives.

Regulations 60-65

Contravention by the BSR and Enforcement: Section 35(2) of the Building Act gives the DLUHC the power to prescribe that certain duties in the Building Regulations are not criminal offences. In line with this, Regulation 60 is introduced to grant specific exemptions to the BSR, relieving them from potential enforcement actions under the Building Act or compliance notices. The exemptions align with those established in the Building Regulations.

Stop Notices for Serious Breaches: Regulation 61 outlines the provisions for which the BSR can issue stop notices, designed for serious breaches of Building Regulations that pose a significant risk to people in or around the building. Stop notices have the effect of immediately halting some or all the building work on a site.

Cooperation with Local Authorities: Regulation 62 designates the functions of local authorities under the Local Land Charges Act 1975, related to HRBs, as "relevant functions" for cooperation with the BSR. This cooperation is essential for maintaining local land charges registers and enabling local authority searches.

Amendments to the Fire Safety Order 2005: Regulation 63 introduces consequential amendments to the RRFO to align with the BSA, including information sharing between RPs.

Amendments to the Community Infrastructure Levy Regulations 2010: Regulation 64 expands the definition of "compliance certificate" in the Community Infrastructure Levy Regulations 2010 to include completion certificates under the new regime.

Amendments to the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023: Regulation 65 introduces consequential amendments to the Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023. These amendments involve:

  • Adding building control approvals concerning HRB work to the list of documents that cannot be given or received by a building control body in respect to prohibited developers.
  • Changes to regulations 35, 36 and 37 are made, which address the procedural exception within the Responsible Actors Scheme.
  • Updates to regulation 34A of the Responsible Actors Scheme and Prohibitions Regulation to include an exception for emergency repair work on existing HRBs.
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