Scope determination appeals and the Building Safety Act

The Building Safety Act 2022 included a provision whereby the decision of a local authority that work relates to higher-risk buildings, could be appealed for determination by the Secretary of State. This provision is known as a scope determination appeal. Scope determination appeals are made to the Secretary of State under Section 101A of the Building Act 1984 and regulation 18E of the Building Regulations 2010 sets out the procedural requirements for this type of appeal.

For example - a developer submits a building control approval application, initial notice or amendment notice to a local authority. The local authority might choose to reject the submission on the basis that it is or contains elements of higher-risk building work, and thus falls under the remit of the Building Safety Regulator (BSR or the Regulator). The developer can in response appeal that local authority decision referencing the work as being higher-risk, and request the decision be made by the Secretary of State.

Note: The new building control regime, which was introduced via the Building Safety Act 2022, means that the BSR is the Regulator and this the building control body for all works relating to higher-risk buildings and it is required to give regulatory approval on higher-risk buildings before any works can begin.

On the 23 September, 2024 the Ministry for Housing, Communities and Local Government (MHCLG) published guidance outlining the procedures for submitting a scope determination appeal to the Secretary of State. These state:

"A scope determination appeal can be made for the following prescribed applications:

• a building control approval application with full plans
• initial notice
• amendment notice

A scope determination appeal must be made within 28 days (which includes weekends but excludes bank holidays) beginning with the day after the day which the local authority refuses to consider the application or notice. For example, if your application was refused by the local authority on Thursday 8 February 2024, then you must make your appeal by 7 March 2024.

The appellant must inform the Regulator of their intention to make a scope determination appeal to the Secretary of State. This notification must be given to the Regulator at least 2 working days before emailing the department. On receipt of your appeal, and subject to the appeal meeting the requirements, the department has 8 weeks to respond.

Appellants wishing to apply to the Secretary of State for a scope determination appeal must email the Ministry of Housing, Communities and Local Government via HRB.scopedeterminationappeal@communities.gov.uk to inform the department of their interest in submitting an appeal with the details of their organisation, project name, and the local authority building control body."

This article is based on "Guidance: Scope determination appeal: appeal to the Secretary of State under Section 101A of the Building Act 1984" published by the UK.Gov.

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