Schedule 6: Appeals and other determinations Paragraph 30 – new section 101A, Appeal: refusal to consider application etc on ground is higher-risk building work
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.
	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.
	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.
	The appellant can appeal to the High Court from the decision of the Secretary of State or Welsh Ministers on a point of law.
	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.