First-tier Tribunal Quashes Building Safety Regulator's Decision

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case reference : LON/00AG/BUM/2025/0001

Property : 30 [ADDRESS] [POSTCODE]

Applicant : [redacted]

Instructed by [NAME_7] ([NAME_8])

Respondent : [redacted]

Instructed by the Health and Safety Executive ([NAME_13])

Type of application : Appeal against a decision of [NAME_9] section 18A(5) The Building Regulations 2010

Tribunal members : Deputy Regional Judge N Carr

Date of determination and venue : 17 [ADDRESS] [POSTCODE]

Date of decision : 2 December 2025

DECISION

DECISION

(1) The decision of [NAME_9], dated 14 August 2025, is quashed.

REASONS

1. When exercising its appellate jurisdiction under section 18A(2) and (3) of The Building Regulations 2010 (‘the 2010 Regs’), is [NAME_9] empowered or permitted to substitute its own expertise and reasoning to rely on new grounds of non-compliance with standards, in order to refuse an appeal? That is the question that arises on this appeal.

Background

2. [NAME_1], the Appellant in this case, commenced works in respect of 30 [ADDRESS] [POSTCODE] (‘the Property’) to carry out a loft conversion and side extension to the existing two-storey semi. Sometime in 2022, his appointed Approved Inspector became insolvent. On 19 July 2022, he approached the Local Authority Building Control department (‘[NAME_14]’) of the London Borough of [NAME_15] (‘[NAME_15]’) to request a regularisation certificate under regulation 18(2) of the 2010 Regs.

3. After meeting with persistent rejection by [NAME_14], for reasons that cannot be identified from the bundle as they have not been provided (whether to or by either [NAME_14] or the Respondent), but in respect of which [NAME_4] identified a ‘personal animus’ of one [NAME_16] (former head of [NAME_19]), the Applicant formally requested the required written notice of refusal under regulation 18(4) of the 2010 Regs.

4. On 3 June 2024, [NAME_16]’s complete response was:

Further to your email sent 28th May 2024, I clarify we have notified the applicant from the outset the position regarding the works which we have repeated on several occasions subsequently, identifying the items considered unsatisfactory. There is no obligation on the local authority to certify the works and we would not intend to add anything further in that connection.

5. Naturally enough, given the abject failure of that email to give any reasons (or indeed comply with the requirements of regulation 18(4)), the Applicant sought to appeal the ‘decision’.

6. Despite The Building Regulations etc (Amendment) (England) Regulations 2023/911 having inserted regulations 18A – 18E into the 2010 Regs with effect from the 1 October 2023, and section 39 of the Building Act 1984 (‘the 1984 Act’) having been substantially amended simultaneously, it remains the case to this day that the only guidance available to the public on an appeal against a notice of refusal continues to set out the process for an appeal to the Secretary of State under section 39 of the Building Act 1984 in its previous form.

7. The then Department for Communities and Local Government published guidance on the process: “Guide to determinations and appeals under the Building Act 1984 Sections 16(10)(a), 39 and 50(2) of the Building Act 1984” (‘the Guidance’). It was published in April 2011 and has not since been updated.

8. It is obtained through a .gov webpage itself entitled “Building regulations: appeals. Guidance about meeting the building regulations, given by decisions on appeals against refusals by local authorities to relax or dispense with one or more requirements of the regulations”, which was created in 2012 and last updated in 2016, and therefore fails to take into account two substantial amendments to the process.

9. In particular, it continues to advise compliance with the process as section 39 of the 1984 Act required for any such appeal as originally enacted (in force 1 December 1984 and first amended 1 October 2023), which was as follows:

39 Appeal against refusal etc. to relax building regulations.

(1) If a local authority refuse an application to dispense with or relax a requirement in building regulations that they have power to dispense with or relax, the applicant may by notice in writing appeal to the Secretary of State within one month from the date on which the local authority notify the applicant of their refusal.

(2) If, within—

(a) a period of two months beginning with the date of an application, or

(b) such extended period as may at any time be agreed in writing between the applicant and the local authority,

the local authority do not notify the applicant of their decision on the application, subsection (1) above applies in relation to the application as if the local authority had refused the application and notified the applicant of their decision at the end of the said period.

(3) The notice of appeal shall set out the grounds of appeal, and a copy of the notice of appeal shall be sent to the local authority.

(4) The local authority, on receiving a copy of the notice of appeal, shall at once transmit to the Secretary of State a copy of the application and a copy of all the documents furnished by the applicant for the purposes of his application.

(5) The local authority shall at the same time give to the Secretary of State in writing any representations that they desire to make as regards the appeal, and shall send a copy to the appellant.

(6) If the Secretary of State allows the appeal, he shall give such directions for dispensing with or relaxing building regulations as may be appropriate.

10. Since the Guidance was issued, section 39 has been amended (on 1 October 2023, and again, twice, on 6 April 2024). Now in its fourth iteration, it provides a substantially different regime:

(1) If a building control authority refuse an application to dispense with or relax a requirement in building regulations that they have power to dispense with or relax, the applicant may by notice in writing appeal within one month from the date on which the building control authority notify the applicant of their refusal.

(1A) The appeal is to be made to—

(a) the [NAME_9], in the case of a refusal by a local authority for an area in England;

(b) the tribunal, in the case of a refusal by the [NAME_9];

(c) the Welsh Ministers, in the case of a refusal by a local authority for an area in Wales.

(2) If, within—

(b) such extended period as may at any time be agreed in writing between the applicant and the building control authority,

the building control authority do not notify the applicant of their decision on the application, subsection (1) above applies in relation to the application as if the building control authority had refused the application and notified the applicant of their decision at the end of the said period.

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11. Reference in that section to the [NAME_9] is (now) to [NAME_9], a body recommended by the report by Dame Judith Hackett in her 2018 review of the building industry following the catastrophic fire at Grenfell Tower in 2017. Initially, the [NAME_9]’s functions were undertaken by the Health and Safety Executive. The HSE subsequently set up [NAME_9] as a departmental body.

12. The appeal form found with the Guidance on the website at https://www.gov.uk/guidance/building-regulations-appeals-The appeal procedure also remains unamended, and continues to reflect the former process of appeal to the Secretary of State. To add to the substantive errors, it refers to [EMAIL] as the email address to which any appeal should be sent, a department that no longer exists in that form.

13. As can be seen above, this is an unsatisfactory state of affairs; it seems very likely that the Guidance and appeal form would mislead an aggrieved person seeking to appeal and unaware or not advised of the substantive changes in the law. That possibility is increased, since section 39 as it presently stands makes no cross reference to the legislation under which the current process is in fact found, i.e. the 2010 Regs.

14. The Guidance also risks substantially prejudicing a party in any appeal it makes. The time in which an aggrieved party is permitted to lodge an appeal has been reduced from 1 month to 21 days (regulation 18A(1) of the 2010 Regs). There appears in the 1984 Act no discretion to extend that timeframe, no matter whether a person was following the government’s own published Guidance.

15. Fortunately, the Applicant in this case sought sufficiently early assistance from solicitors in this process. The Applicant completed the form and provided it to the email address provided, on or around 24 June 2024 (i.e. well within the one month date specified in the Guidance founded in the previous law, and fortunately also within the foreshortened 21 days an appellant now has, though it is of course arguable that given the wholesale failure of [NAME_16]’s email to comply with the statutory requirements for a refusal, the Applicant would have benefitted from the extended 2 months and 21 days as if ‘no refusal’ had been received).

16. It took the Respondent until 24 July 2024 to acknowledge the appeal.

17. In the acknowledgement letter, the assistant [NAME_20] characterised the appeal as one in respect of requirements A1 and H4 even though the appeal itself did not refer to those standards (and the ‘refusal’ email from [NAME_16] cast no light on the matter).

18. By email of the same date, at 5.43pm, an Executive Support Assistant emailed [NAME_16] seeking his representations within the following 14 days.

19. [NAME_16]’s initial response on 26 July 2024 was simply that the Applicant and he were in disagreement over whether the works “comply with the requirements”. He did not identify which works to which he was referring.

20. On 31 July 2024, the Applicant confirmed that he had supplied all of the evidence (including from [NAME_21], [NAME_22], and [NAME_23]) he relied on.

21. On 9 August 2024, [NAME_16] sent a fuller reply to the Respondent, in which he stated (emphasis added):

“An application was received in respect of a Mid-storey side extension, loft conversion and refurbishment on 19.01.2022 from [NAME_1] (Owner [ADDRESS] SW15), due to the Approved Inspector, Head Projects, cancelling their Initial Notice on 21.08.2019. This application was submitted as a Regularisation.

Works were virtually complete at the time of the cancellation of the Initial Notice and, following a site inspection, the local authority clarified a number of items associated with the works that would need to be verified before any certification could be provided.

At this point the works were virtually complete. The local authority sent email confirmation on 20.01.2022 requesting further application details.

Photographs were sent in by [NAME_1] on 02.02.2022 and the local authority responded on the 09.03.2022 with a list of items in response to the information that had been submitted. This list of items included a request for evidence of the suitability of the foundation details.

There was no communication until 27.10.2022 when [NAME_1] contacted the local authority stating he wanted to 'move on' with the application. On 09.11.2023 the local authority emailed [NAME_1] stating there had been no response to the local authority's ear1ier correspondence listing a series of outstanding details and suggested visiting site.

On the 08.12.2022 a site visit was carried out, following which the local authority communicated a list of outstanding details, which also included reference to the foundation details. Several emails were sent between the parties over the following period and progress was made on many of the items, however the issue with the foundation design and the location of the sewer remained outstanding.

The local authority has been clear that the details are not acceptable in terms of complying with Part A of the building regulations to withstand the transference of loads from the building pursuant to those provisions.

The regularisation application was received when the works had been almost completed. It was clear from the site inspections undertaken that the flank wall of the two-storey building (also containing a loll room at second storey level) was built adjacent to a sewer that was located at greater depth than the foundations and also passed underneath the foundations. The alignment of the drainage on site is impacted by the construction at both front and rear walls as well as along the alignment besides and under the left flank wall of the extension.

There are inadequate clearances to the TWA sewer and the sewer is surcharged.

The appellant contends that obtaining a [NAME_23] agreement is a sufficient approval of the design.

The local authority has always clarified that a build over agreement from the Water Authority does not infer compliance with the building regulations, the jurisdiction for which rests with the local authority as it is the local authority that issues the decision and determines compliance with the provisions of the building regulations. Additionally, as the construction has been built on site, inspection evidence is also necessary in determining suitability of the details.

It is also noted from the Appellant's submission that they contend the local authority 'approved' the details quoting an email sent by the local authority dated 41h July 2023.

The email dated 4th July 2023 to which the Appellant refers is copied below. You will see that the full content viewed in context refers to the wind post detail. It also has a caveat that requires the foundation to be exposed and therefore would be subject to on-site inspection before any further judgment could be determined. This does not relate to the foundation under the main flank wall of the building but relates to the lateral stability of the flank wall. This commentary has also been

relayed to [NAME_1] and his representatives.

"Dear All,

[NAME_24] has reviewed the latest proposal received today for the lateral stability of the flank wall; his comments are:

200x100x6.3 (28.1 kg) RHS section wind post is acceptable if adequately connected throughout its height to the flank wall by welded lugs resin bolted to the wall. This section's lower value of lxx compared to the other options is not a disadvantage as the deflection is not the controlling factor for the design under wind conditions.

The foundation design as sketched if proved to be such when exposed on site will be acceptable subject to written acceptance by TWA on clearances.

In respect of the other structural items listed under Cales Additional 230721 pdf, they can be reviewed and accepted or rejected when opened for inspections.

Kind regards,"

Notwithstanding the above comments, the local authority has not received an application for Relaxation under section 8 of the Building Act and therefore is surprised an Appeal against a refusal to relax the regulation has been lodged. The Appellant has contended they comply with the regulations and therefore there is a difference of opinion on the part of the Appellant and the local authority, as the London Borough of [NAME_15] consider details are not satisfactory in terms of compliance with part A of the building regulations 2010 as amended.

The local authority has been clear throughout the process of the Regularisation application that the foundation details were required to be shown to comply with the requirements of the legislation, and identified they were not satisfied with the details provided.

It is in respect of the above commentary that the local authority has refused to certify regularisation of the application. It is noted that the appeal relates to relaxation of the regulation, in respect of which (as previously stated) the local authority has received no formal application, however, in the event a relaxation application was submitted regarding part A of the regulations in connection with the foundation detail, the local authority would refuse the application on the basis of the grounds identified above.”

22. The assertion that [NAME_14] had not received a formal application for the regularisation certificate is patently wrong.

23. That email was not copied to the Applicant. It is unknown whether it had been provided to the Applicant at any time before this appeal. However, the Applicant had made a stage 1 complaint to [NAME_15] in connection with [NAME_16]’s conduct (including refusal to provide the required written statement of reasons for refusing the certificate). Remarkably, given the complaint was in regard to [NAME_16]’s own conduct, it appears that he investigated himself. A reply was given on 8 August 2024 that appears to have been substantively similar to the above, in particular highlighting standard A.

24. By email of 30 August 2025, the Applicant wrote to the Respondent to highlight that [NAME_16] appeared to act as a conduit between the Respondent and the Applicant, and that [NAME_16] had recently responded to a Stage 1 complaint which responses the Applicant took significant issue with. The Applicant described [NAME_16]’s stage 1 complaint response in that email as follows (emphasis added):

for the first time [he] attempts to justify his refusal to issue the Regularisation Certificate, broadly on two grounds:

1. “the details are not acceptable in terms of complying with Part A of the building regulations to withstand the transference of loads from the building pursuant to those provisions”; and,

2. given the progress of the works when my Approved Inspector became insolvent and [NAME_19] was appointed, [NAME_19] was unable to inspect the foundations.

He concluded:

Given the nature of [NAME_19]/[NAME_16]’s conduct, I would wish to have the opportunity to respond to any position stated by or on behalf of [NAME_15] and, at the very least, correct the disingenuous statements and position which [NAME_19]/[NAME_16] continue to make.

25. On 30 August 2024, the Applicant made a complaint to the Respondent in connection with it ignoring six emails. The Respondent replied on 11 December 2024, by formal Stage 1 complaint letter, apologising for the failure to respond. It set out that the Respondent aimed to respond to appeals applications within four months of receipt of all paper (and cited the Guidance above). In that letter, the Respondent said this of the appeal (emphasis added):

An email was sent to the email address on the application form on 30 October, providing an update regarding your case. Your appeal application relates to a matter of dispute with the local authority building control authority regarding your two-storey side extension, loft conversion and refurbishment project and compliance with requirement A1 of Schedule 1 to the Building Regulations 2010 (as amended)….

26. That letter promised an appeal decision letter during the week commencing 27 January 2025.

27. The next day, 12 December 2024, [NAME_15] provided a Stage 2 complaint response letter to the Applicant. The person undertaking that complaint response, [NAME_25] (Interim Director of Place), appears to have obtained technical advice from [NAME_26] MRICS C Build MCABE IEng Chartered Surveyor. The Stage 2 response expanded further the alleged grounds of refusal, citing standard H4 for the first time. It is not known whether this was due to [NAME_26]’ investigations or from some document or information that has not been disclosed to the Applicant and Respondent.

28. On 30 January 2025, a [NAME_20] support officer [NAME_28] emailed [NAME_16] asking him to confirm that [NAME_16]’s email of 9 August 2024 was the LBCA’s position. It appears that [NAME_16] had by then left [NAME_15]. [NAME_26] replied. [NAME_26] supplied the stage 2 response decision on the same day.

29. It seems clear that the LBCA was then given time to respond further, as evidenced in [NAME_26]’ exchanges with [NAME_23] and the Respondent during the course of December 2024 - June 2025. That correspondence was said to be both in connection with this appeal and as regards an Ombudsman referral, and resulted in a rather surprising level of animosity by [NAME_26] towards [NAME_23], as evidenced in the following emails sent to and about it:

20 December 2024 to [NAME_23]: “I am currently dealing with a complaint where you have approved a two-storey extension, straight on top of a 100mm public sewer, down its length.

The building owners are using your agreement to state Part A and H4 requirements have been met. We have obviously stated its not down to [NAME_29] to agree compliance.

My question really is, did you not review the design details and why did you not raise any objections.”

27 June 2025 to the Respondent: [redacted]

Victoria also confirmed to me repairs were conducted on the sewer. I can see why [NAME_23] are in a mess no one knows what they are doing.”

30 June 2025 to [NAME_23]: “The building over agreement does not meet most of the Water UK's Design and Construction Guidance and I shall challenge [NAME_23] at any tribunal we are placed in.

Health and Safety Executive. [NAME_30] comments and Victoria from [NAME_23] needs to be escalated. It is very clear the building over agreement should have never been granted and the design does not meet Approved Document Part H, A or their own Water UK's Design and Construction Guide.

It is clear [NAME_30] has never seen the Water UK's Design and Construction Guide. Bearing in mind the sewer will bend its entire length due to the load causing blockages. It is concerning [NAME_30] comments" it complies" when it clearly does not.

[NAME_30] can you also confirm your qualifications to state the Sewer complies to the specifications?”

30. None of this additional correspondence was copied to the Applicant. The Respondent adopted a process in which the parties were not required to copy material or emails sent by them to the Respondent, to each other. The resulting decision has come about in circumstances of a significant want of transparency.

31. It is unclear why the Respondent permitted [NAME_14] to continue to submit further evidence after the original 14 days specified, continuing the appeal process for 11 months more than the anticipated 4 months from the date the appeal was acknowledged by it commits, by the Guidance, to give a decision.

32. It is unclear why the Respondent failed to consider whether the further evidence it received, clearly (1) created long after [NAME_16]’s ‘decision’ email, and (2) provided long after the deadline given to the Respondent to respond, ought to have been brought to the attention of the Applicant for his comment.

The decision challenged

33. Finally, by letter of 14 August 2025, 15 months after the appeal was made to it, the Respondent notified its decision in the appeal (‘the Decision Letter’).

34. It is far from clear who in fact made the decision. In a witness statement dated 21 October 2025, [NAME_32] Specialist, Technical Policy Team describes the process of the decision making, which begs more questions than it answers.

35. He explains he was “commissioned by a [NAME_20]” to “review the Applicant’s appeal in relation to drainage issues”.

36. As far as process is concerned, he described it as follows:

8. Technical Officers in the Technical Policy Team… are required to carefully read the papers on file and provide technical input to the drafting of the final decision letter. The technical officer’s role involves checking the initial sections of the draft decision letter that the [NAME_20] team have drafted relating to the description of the building/building work, the matter in dispute and summarising the parties’ cases, ensuring that all the important issues involved have been included in the consideration of the case.

9. All conclusions of the evidence are drawn solely from these documents and the opinions expressed within those documents; no site inspection nor corroboration of the evidence was undertaken. the main stages in the appeal procedures on pages 5 – 8 of the published guidance document ‘Building regulations determinations and appeals: guidance’, have been followed. This guidance document was published prior to the introduction of the Building Safety Act in April 2022, and is now subject for review.

10. The process requires that:

a. The [NAME_20] receives all the relevant documentation regarding the case.

b. Once an appeal case is accepted, the building control service will be consulted to ascertain their position on the particular circumstances of the building work.

c. The information received is shared with a technical officer who will perform their role.

11. The following documents were examined in my determination:

• [NAME_35] consulting site plans and detailing

• Wind pad post construction detail.

• Ground & first floor plan.

• [NAME_36] structural engineers report.

• [NAME_23], Class 1, Build Over Agreement.

• London Borough of [NAME_15] 2 complaint letter.

• BGS Geology Viewer.

37. The Decision Letter itself is signed by [NAME_37], Head of Technical Policy Operations & Support. It is entirely unclear what her involvement in the decision was. None of the other documents in the bundle appear to bear her name.

38. The problems with the Decision Letter are manifold.

39. It does not set out the list of the grounds of appeal under the 2010 Regs, or identify the Respondent’s powers. It does not identify a list of the evidence that has been considered by the decision maker(s), or how it has weighed that evidence. It makes no mention of [NAME_32]’s involvement or what he took into account.

40. The decision states that [NAME_14] determined that the works concerned did not comply with standards A1, H1 and H4. It is therefore quite clear that the decision that the Respondent considered was not the correct one, i.e. the email from [NAME_16] of 4 June 2025, despite that being identified in the appeal grounds.

41. It might ordinarily be expected that it should set out the grounds of appeal specified in the Applicant’s notice of 24 June 2024, but it does not do so. The decision states that the Applicant appealed that decision on the basis “the construction is sound and that no issues have arisen since the works were carried out”. Nowhere in the Applicant’s appeal to the Respondent do those words appear, though they are very close to words used by [NAME_16] in the email correspondence. The contents of the grounds of appeal were as follows:

3.3 Please give a brief statement explaining your case for appealing against the local authority's refusal to either relax or dispense with the particular requirement(s) of the Building Regulations in question

Despite complying with the Building Regulations and all of [NAME_15]'s requirements, [NAME_15] has refused to issue the Regularisation Certificate and continues to refuse to set out: (i) the particular section(s) of the Building Regulations which it considers are not complied with; and, (ii) the reasons why they so consider.

Regardless, the Regularisation Certificate should have been granted:

1. the Works are in accordance with the Building Regulations - see

section 3.2 above and particularly the correspondence from our structural engineer; and,

2. [NAME_23] gave Build-Over Consent as required by [NAME_15].

…

4.1 Have you attached a copy of a letter (comprising a brief statement) from the local authority regarding your appeal, which provides its comments on the building/building work and the matter in dispute and explains why the authority is not prepared to relax or dispense with the applicable requirement(s) of the Building Regulations in question?

All Building Control (our building control consultant) wrote to

[NAME_15] on 22 May 2024: (i) formally requesting

the regularisation certificate; and, (ii) if the certificate is not issued

requesting reasons setting out which part(s) of Schedule 1 of the

Building Regulations are considered not to be met.

[NAME_15] responded by email on 3 June 2024

refusing to issue the certificate and failing to set out the reasons why.

42. Next, the letter summarised that the decision maker noted “the following points:

o The foundations have a close proximity to the public sewer and that the underside of the foundations are above the invert of the sewer

o The drainage arrangements do not meet the standard of protection expected, with insufficient details of bedding, backfill, and proximity to the sewer pipe

o The [NAME_23] Agreement only relates to proximity and does not confirm compliance with building regulations.”

43. None of these matters were raised in [NAME_16]’s ‘refusal’ on 4 June 2024. So far as [NAME_16]’s email of 9 August 2025 in concerned, he relied only on matters regarding standard A, and not drainage for standard H.

44. There is an inherent contradiction in the second bullet point – if there are insufficient details, it cannot be concluded that the standard is not met - only that there is insufficient evidence of it being met.

45. As regards the third bullet point, [NAME_23]’s overbuild agreements (of which there were, as I understand it, two), and what [NAME_14] said to the Applicant about the effect of those agreements was, it would appear, a matter of substantial dispute between the parties. This is not a note; it is a finding. It is a finding without any reasoning, and firmly based not in [NAME_16]’s decision but in the much later correspondence of [NAME_26].

46. The ‘notes’ when taken together amount to factual findings, in a process in which there appears to have been no process to resolve the factual dispute, and in which the later participation in the process by [NAME_26] appears to have been unfairly allowed to set the facts of the decision.

47. In a section designated “Scope and Limitations of Assessment”, the decision writer states that the appeal is brought only under regulation 18A(1)(c) of the 2010 Regs, and has been considered only on the grounds set out in regulation 18A(5)(c).

48. Firstly, that is a misstatement of the law. The provisions of Regulation 18A which set out the task and powers of the Respondent on appeal are set out in regulation 18A(2) and (3), though fortunately they are a mirror to the Tribunal’s own task and powers in 18A(5) and (6).

49. Secondly, that is clearly a misstatement of the breadth of the Applicant’s appeal, which does not bear of a reading that the grounds relied on were only that the decision was ‘unreasonable’. The Applicant clearly identified in his grounds of appeal – twice – that [NAME_14] had refused to provide reasons for its refusal as required of it. At the very least regulation 18A(2)(d) was also engaged.

50. It might ordinarily be expected that it should set out the grounds of appeal specified in the Applicant’s notice of 24 June 2024, but it does not do so.

51. It is unclear who decided that grounds should not be considered, but in doing so the Respondent improperly fettered the exercise it should have undertaken.

52. Next, the section designated “Decision”, the Respondent set out conclusions on standards A and H as follows:

A1

• We agree with the appellants structural engineer, that the reinforced concrete beam cast on the masonry foundation should reduce the risk of ground movement damaging the building.

• [NAME_9] have concerns that the lack of compliance with part H of the Building Regulations creates a risk that ground movement related to defective drainage could damage the building. Taking into account the

evidence presented on the construction details, our view is that if this risk materialised, it wouldn’t cause damage of the severity where it would impair the securing of reasonable standards of health and safety for persons in or about the building, which is the limit of the Part A requirements.

H1 & H4

• The evidence provided does not demonstrate compliance with parts H1 and H4 of schedule one to the Building Regulations 2010 (as amended).

• There is insufficient reliable information to confirm that the drainage installation has adequate capacity, bedding, backfilling, and protection in line with relevant statutory guidance.

• The [NAME_23] Agreement provided relates only to proximity to the public sewer and does not confirm compliance with building regulations; no supporting site inspection notes or technical

confirmation were provided by the sewerage undertaker.

53. A1 and H1 & H4 were not referred to in [NAME_16]’s email of 4 June 2024. Thereafter, only A was referred to in his submissions on 9 August 2024. Again, none of the materials provided postdating that, except for the stage 2 response letter from [NAME_15] in which again, only standard A was mentioned, were seen by the Applicant or provided to him for comment. He was therefore not made aware of the matters being raised in respect of H1 and H4, so had no opportunity to comment.

54. I would add that it would appear that the Respondent’s “concerns” regarding “the lack of compliance with part H of the Building Regulations” would seem, given the process adopted, to have been set motion not by [NAME_16]’s decision, but by [NAME_26]’ correspondence.

55. The decision is therefore tainted by the Respondent’s procedural unfairness. The Applicant has been denied natural justice.

56. In its expression of the outcome of the decision, the Respondent said this:

Summary of Outcome: The appeal is upheld in respect of requirement A2 and refused in respect of requirements H1 and H4. Overall, the [NAME_9] agrees with the council's refusal to issue a regularisation certificate for the works, as non-compliance with requirements H1 and H4 remains.

Accordingly, the appeal is refused. The [NAME_9] upholds the decision by [NAME_15] not to issue a regularisation certificate for the works undertaken.

57. That decision cannot stand. The reasonable recipient of it would not understand the decision that has been made, applying the powers given in regulation 18A(3) of the 2010 Regs:

(a) The findings in the previous paragraph regarding standard A are directed at A1. However, here the Respondent agrees with the Applicant – whose appeal was against a decision in which no requirements were in fact identified – that his appeal against [NAME_14] in respect of standard “A2” (a different standard from that raised by [NAME_16]) should be upheld.

(b) The Applicant made no appeal against any decision concerning the requirements in H – no mention of any such requirements was made until long after the decision with which the Respondent’s jurisdiction was concerned. There was no appeal against the newly introduced standards to refuse.

(c) The paragraph purports to both uphold and dismiss the appeal.

58. The Respondent’s position in the preliminary issue (see below) demonstrates that even they did not understand the decision that had been made, leading to their instructed counsel finding himself submitting that the refusal of the appeal was in reality the Respondent allowing the appeal, and substituting its own decision.

59. The final paragraph of the decision may perhaps explain quite how delivery of the Respondent’s task went so badly awry. In the appeal rights, the Respondent states: “This decision has been made by [NAME_9] as a prescribed decision under Part 4 of the Building Safety Act 2022”.

60. That is a wholly incorrect statement. This is not a higher risk building (to which the provisions in part 4 of the Building Safety Act 2022 (‘the 2022 Act’) apply. Part 4 is very different, and confers on the Respondent a direct responsibility (for which it is the primary decision maker) to enforce a wide range of obligations in respect of higher risk buildings - section 98 of the 2022 Act).

61. The overall impression that the refusal letter leaves one with is that it is written with a lack of understanding of the task on the appeal, the application that has been made, the powers available to the Respondent and principles of basic fairness, openness or natural justice, and the law.

62. The process undertaken leaves me with the view that the Respondent was doing everything it could to ensure that the appeal was not successful, allowing [NAME_15] to go far beyond the boundaries of the decision of 4 June 2025. It was the Respondent’s submission at the hearing that it considered that it was a second line of building control in this task, and that supports that conclusion.

63. The Applicant was not even aware of the grounds his appeal was being considered under. So far beyond [NAME_38]’s refusal was [NAME_15] permitted to go, and [NAME_32] willing to support, that the decision is tainted with the perception of (if not actual) bias.

64. It is clear that the decision cannot stand. [NAME_10] accepted that expressly towards the end of his submissions. He nevertheless pursued the Respondent’s argument that it was enabled by the statute to substitute its own reasons or expertise for those of [NAME_14], to conclude that an appeal should be refused, as a “matter of importance” to the Respondent.

65. It also appeared to be the Respondent’s case that, if the Tribunal quashes the decision of the Respondent, the Tribunal must remit the matter to the Respondent for a fresh decision. That is what the Respondent openly offered to the Applicant by way of resolution at the commencement of the hearing. That was not acceptable to the Applicant.

66. This was not a matter raised in its statement of case. The Respondent’s conduct of this appeal added further evidence of a failure to accord sufficient gravity, and dedicate proper resources, to the dispute.

67. The hearing of the preliminary issue therefore proceeded, on the basis that I took the view that there was a substantive issue between the parties that required resolution, in particular the consequences that flow from allowing an appeal.

The Law

68. The 1984 Act contains, in sections (1) and (1A), the power of an appropriate national authority to make regulations as regards the design and construction, demolition, and services, fittings and equipment provide in or in connection with, buildings, for any of the purposes of:

(a) securing the health, safety, welfare and convenience of persons in or about buildings and of others who may be affected by buildings or matters connected with buildings,

(b) furthering the conservation of fuel and power,

(c) preventing waste, undue consumption, misuse or contamination of water,

(d) furthering the protection or enhancement of the environment,

(e) facilitating sustainable development, or

(f) furthering the prevention or detection of crime.

69. Schedule 1 to the 1984 Act, at paragraph 1, makes specific provision for building regulations to:

(a) provide for particular requirements of the regulations to be deemed to be complied with where prescribed methods of construction, prescribed types of materials or other prescribed means are used in or in connection with buildings,

(b) be framed to any extent by reference to a document published by or on behalf of the appropriate national authority or another person or a body, or by reference to the approval or satisfaction of a prescribed person or body.

70. Paragraph 1I of schedule 1 to the 1984 Act provides, so far as relevant as follows:

1I Appeals

(1) [...]2Building regulations may make provision for and in connection with appeals against decisions made under, or under an instrument made under, Part 1, 2 or 2A of this Act.

(2) The regulations may confer, in respect of a prescribed decision—

(a) in relation to England—

(i) a right to appeal to the [NAME_9] or the tribunal, and

(ii) in the case of an appeal to the [NAME_9], a right of appeal to the tribunal against the decision of the [NAME_9] made on appeal;

…

(3) The provision that may be made in connection with appeals includes provision about a right of appeal conferred by Part 1, 2 or 2A.

(4) The regulations may in particular make provision about—

(a) the grounds upon which an appeal may be made;

(b) the period within which an appeal must be made;

(c) the way in which any appeal is to be made;

(d) the powers of the court, tribunal or other person determining the appeal (including provision conferring a power to give directions and, in the case of the [NAME_9] or Welsh Ministers, powers in respect of costs).

71. It is pursuant to those provisions that the 2010 Regs were made.

72. Regulation 18A of the 2010 Regs sets out the following as regards an appeal from a local authority refusal:

Appeal against refusal to grant certain certificates

18A.—(1) A person (“the appellant”) who has—

…

(c) applied to a local authority under regulation 18(2) (unauthorised building work) for a certificate and the authority has refused to give the certificate,

may appeal to the [NAME_9] against the decision of the local authority to refuse to provide the certificate provided the appeal is made within 21 relevant days beginning with the day after the day on which the local authority notifies the appellant of the refusal.

(2) The [NAME_9] may allow an appeal under paragraph (1) only if it is satisfied that the decision appealed against was wrong on one or more of the following grounds—

(a) that the decision was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unreasonable; or

(d) that the decision was made without following the procedures set out in the Act or regulations made under that Act.

(3) If the [NAME_9] allows an appeal it may quash or vary the decision.

(4) An appellant aggrieved with the decision of the [NAME_9] on an appeal under this regulation may appeal that decision to the First-tier Tribunal within 21 relevant days beginning with the day after the day on which the [NAME_9] notifies the appellant of its decision.

(5) The First-tier Tribunal may allow an appeal referred to in paragraph (4) only if it is satisfied that the decision appealed against was wrong on one or more of the following grounds—

(a) that the decision was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unreasonable; or

(6) If the First-tier Tribunal allows an appeal it may quash or vary the decision.

73. The Respondent is a creature of statute, created by section 2 of the Building Safety Act 2022 (‘the 2022 Act’). Its objectives and regulatory principles are set out in section 3 of the 2022 Act:

(1) The [NAME_9] must exercise its building functions with a view to—

(a) securing the safety of people in or about buildings in relation to risks arising from buildings, and

(b) improving the standard of buildings.

(2) In exercising a building function (other than an excepted function), the [NAME_9] must have regard to the following principles—

(a) regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent, and

(b) regulatory activities should be targeted only at cases in which action is needed.

(2) The duty in subsection (2) is subject to any other requirement affecting the exercise of the function.

(4) In subsection (2) "excepted function" means—

(a) a function under any of sections 4 to 6, or

(b) a function of the [NAME_9] under the Health and Safety at Work etc Act 1974 so far as relating to any such function.

(5) In this Part "building function" means—

(a) any function of the [NAME_9] under, or under an instrument made under, this Act or the Building Act 1984;

(b) any prescribed function of the [NAME_9];

(c) any function of the [NAME_9] under the Health and Safety at Work etc Act 1974 so far as relating to a function within paragraph (a) or (b).

74. The 2022 Act makes specific, excepted, functions for the [NAME_9], in particular that contained in section 6:

6 Facilitating improvement in competence of industry and building inspectors

(1) The [NAME_9] must provide such assistance and encouragement as it considers appropriate to—

(a) persons in the built environment industry, and

(b) registered building inspectors,

with a view to facilitating their improving the competence of persons in that industry or members of that profession (as the case may be).

(2) For the meaning of "the built environment industry" and "registered building inspector" see section 30.

Other relevant material

75. The Explanatory Notes to section 3 of the 2022 Act were not provided by the Respondent or [NAME_10], even though section 3(1)(a) was heavily relied on. They are important material for the purpose of the task that the Tribunal must undertake. They set out as follows:

Effect

141. Clause 3 sets out the objectives that the Health and Safety Executive must follow when exercising its functions as [NAME_9] (such functions are referred to as building functions), and certain principles which will guide the way [NAME_9] undertakes its main operational functions.

142. The first objective is to secure the safety of people in or about buildings. This aim applies to risks to safety that are associated with buildings (rather than, for example, broader issues of general crime and disorder). The objective covers people either in buildings or in their immediate vicinity, as (for example) people close to a building could be hit by material from the building.

143. The second objective is to improve the standard of buildings. The Health and Safety Executive could fulfil this objective by taking steps that either improve the quality of a standard or lead to more consistent compliance with an existing standard. A standard is defined in clause 29 and can cover the requirements of the Building Regulations, guidance in Approved Documents, as well as non-legislative British Standards set by the British Standards Institution, and standards recognised within industry.

144. When undertaking a specific activity, [NAME_9] may consider that only one objective is relevant, or that one objective should carry more weight than the other.

145. [NAME_9] will not be responsible directly for the construction or management of buildings — this Bill, alongside the Building Act 1984 and Building Regulations, assigns clear duties in respect of those matters. For example, the Accountable Person is primarily responsible for ensuring that a higher-risk building is managed safely when occupied (see later clauses). The intention of the statutory objective is to ensure that the Health and Safety Executive exercises its regulatory functions with the aim of securing safety and improving standards.

146. Clause 3 then sets out principles to which [NAME_9] must have regard when delivering its main operational functions. These principles are focused on the way in which [NAME_9] should undertake its main operational functions. The principles reflect established regulatory good practice.

147. Under the principles, operational activity should be consistent, transparent and accountable, which could be secured by grounding operational activity on published policy and guidance, and publishing performance metrics about how the activity was undertaken. Activity should be targeted on cases where action is needed, and be proportionate, rather than (for example) requiring excessively costly measures for little benefit in terms of reduction in risk.

148. [NAME_9]’s building functions are subject to the principles, except the [NAME_9]’s general functions in clauses 4 to 6. This reflects that these general functions focus on driving culture change and improvement across whole industries, or monitoring safety and standards across all buildings. When undertaking these very general functions, which are not focused on enforcing in individual cases, certain of the principles (in particular targeting action only at cases where action is needed) are not appropriate.

149. Clause 3 defines [NAME_9]’s ‘building functions’ as:

1) Building functions provided for in this Bill, the Building Act 1984, and regulations made under those two pieces of legislation;

2) Functions of the Health and Safety Executive defined as building functions by regulations made under this clause;

3) Functions of the Health and Safety Executive provided for under the Health and Safety at Work etc. Act 1974 that relate directly to the other building functions (such as exercising the powers in new section 11A Health and Safety at Work etc. Act 1974, which enables the Health and Safety Executive to make arrangements to deliver its building functions).

150. Building functions are subject to [NAME_9]’s objectives, would form part of [NAME_9]’s strategic plan (see clause 17), are relevant to powers to share information and duties to cooperate (see clause 26 and Schedule 3) and are subject to the regular review of the regulatory system (see clause 135).

Background

151. Clause 3 is a new provision.

152. The principles draw on the example of section 21 of the Legislative and Regulatory Reform Act 2006. Utilising established principles of regulatory best practice, which apply to Health

Example 1

When making proposals to the Secretary of State for changes to the Building Regulations, [NAME_9] could act in line with its objectives by suggesting changes to the regulations to seek to resolve a recurring problem with standards of buildings.

Example 2

When undertaking its functions in respect of higher-risk buildings under the new regime in Part 4 of the Bill, [NAME_9] could exercise its functions with a view to securing the safety of people in or about buildings by preparing best practice guidance encouraging [NAME_40] to deliver their responsibilities for resident safety effectively.

Example 3

Where [NAME_40] do not respond positively to encouragement and information, active enforcement of the new regime could also help meet the objective to exercise its functions with a view to securing safety.

When enforcing Part 4, [NAME_9] will have regard to the principles. We expect that the [NAME_9] will operate consistently and transparently, e.g. on the basis of a published enforcement framework, which is the approach suggested by the [NAME_9]’s Code. The action taken will be proportionate to the seriousness of the breach and targeted at cases where action is needed.

76. In the Planning jurisdiction, the Government has recently (1 December 2025) published a guidance relating to inspectorate appeals, making detailed provisions for process Procedural Guide: Planning appeals – England - GOV.UK. However, that guidance only applies, it would appear, to the initial stages of planning approval.

77. The HSE has published a [NAME_9], dated December 2023 [NAME_9] enforcement-policy.pdf. That is not a document cross-referenced by the Guidance or appeal application form, nor on the .gov webpage identified above. The [NAME_9] enforcement policy cross-references as an “overarching enforcement policy”, which is in fact a policy stated to be in respect of the health, safety and welfare of people at work HSE Enforcement Policy Statement (which also predates the 2022 Act and the creation of the [NAME_9]). That is also not referred to in the Guidance, form, or on the above-mentioned webpage.

78. Neither policy has been provided by the Respondent in support of its case, though these are policy documents it is bound by. The Respondent must be taken to know its own policies.

79. Each focusses substantially on the principle of proportionality, “prioritising the most significant risks i.e., those with the potential to cause real harm to residents and other affected by their activities” ([NAME_9] enforcement policy para 5.2). Each policy sets out detailed guidance on the principles of proportionality, targeting, consistency, transparency and accountability. There is reference to the existence of an enforcement decision-making framework.

80. Unlike the Planning jurisdiction (or indeed the Health and Safety at Work Act 1974 jurisdiction, which also has a comprehensive set of appeal rules encapsulating the process of the appeals jurisdiction of the HSE (The Health and Safety Licensing Appeals (Hearings Procedure) Rules 1974 1974/2040)), I am unable to find, and the Respondent has not identified, any set of rules for a 1984 Act appeal.

81. There is also no specific guidance set out in either of the HSE or [NAME_9] policy in respect of the Respondent’s appeal jurisdiction for the various matters of building control relating within the 2010 Regs.

82. The Respondent appears to have, at least initially, approached this appeal similarly to the way an Ombudsman might approach a complaint to it.

83. The 1984 Act gets only two mentions in [NAME_9] enforcement policy:

(a) “5.4 Some legal duties under building legislation (Building Act 1984, associated building regulations and Building Safety Act 2022) are specific and absolute whilst others require ‘reasonable steps’. Again, our regulators will apply the principle of proportionality in relation to both”; and

(b) in connection with a requirement to report certain categories of incident directly to the Respondent (paragraph 6.2).

84. In the [NAME_9] enforcement policy, the purpose of enforcement is said to be as follows:

3.0 The purpose of enforcement

3.1 We take enforcement action to secure the safety of people in and around buildings and improve the standards of buildings by requiring duty holders to manage the risks arising from buildings.

• As building control authority for higher-risk buildings, we ensure those who carry out building work (including erection or alteration) on or in higher-risk buildings comply with the requirements of building regulations.

• As the [NAME_9] for occupied higher-risk buildings, we take action to ensure that accountable persons (APs) manage building safety risk in higher-risk buildings.

The issues

85. By directions dated 6 October 2025, I identified the preliminary issue as follows:

(G) Regulation 18A(2) of the Regulations empowers the Respondent as follows, in respect of an appeal against a decision of a local authority:

(2) The [NAME_9] may allow an appeal under paragraph (1) only if it is satisfied that the decision appealed against was wrong on one or more of the following grounds:

(a) that the decision was based on an error of fact;

(b) that the decision was based on an error of law;

(c) that the decision was unreasonable; or

(H) Prima facie, regulation 18(A)(2) appears to be a reviewing power only; it does not appear to contain a power for the Respondent to uphold an appeal on grounds that it itself introduces. It is not the decision-maker, [NAME_41] is. It would appear to be confined to deciding whether any of the grounds (a) – (d) applies to the decision of the primary decision-maker.

(I) It appears to Judge N Carr that it would therefore be appropriate to consider, as a preliminary issue, the question of whether the Respondent’s decision in this case was made without jurisdiction (i.e. ultra vires), before the parties embark on work in connection with the remainder of the grounds (and in light of the urgency for the Applicant).

86. The said urgency is in the fact that the Applicant sold the property sometime in 2023, and on 14 December 2025 the Applicant stands to lose £120,000, held by his solicitors as a retention in favour of the purchasers of the property sometime in 2023, against the Applicant obtaining the regularisation certificate.

Procedural issues

87. By the directions the Applicant’s application and accompanying documents stand as his case. I required the Respondent to prepare for the hearing of the preliminary issue as follows:

2. By 4pm on 21 October 2025, the Respondent must send to the Applicant and to the Tribunal by email its statement of case, supported by a statement of truth, in which it provides:

(a) Any legal arguments on which it relies on the preliminary issue,

(b) Any witness statements of the decision makers on whose evidence it relies,

(c) Any documents (including case law or statutory material) on which it relies,

together with:

a. A copy of the decision of [NAME_41] in respect of which it exercised its jurisdiction;

b. Any contemporaneous explanation or notification to the Applicant whether by email, letter, or telephone attendance note or otherwise) of its reliance on grounds not relied on by [NAME_41], if that is what it did.

88. On 21 October 2025, what was filed by the Respondent purported to be a “Skeleton Argument”. It was not signed with a statement of truth (and it remained unknown at the hearing by whom it had been drafted). It purported to cross-refer to a number of documents, that were not attached to it as exhibits (and so also not covered by the required statement of truth).

89. In it, it asserted as follows:

(a) As a question of fact, the Respondent was entitled to conclude that [NAME_14] had refused to issue the Regularisation Certificate on grounds that included non-compliance with Part H of Schedule 1 to The Building Regulations 2010 (‘the Regulations’). It relied predominantly on its interpretation of certain phrases in the Applicant’s appeal, its own letter of 24 July 2025 in which it asserted (in the heading) that the appeal was in respect of A1 and H1 & H4, and on documentation it had obtained from [NAME_14] post-dating the appeal made to it by the Applicant.

(b) On the question of law:

i. In any event regulation 18A(2) and (3) conferred on the Respondent “wide powers” not limiting the Respondent “to allowing or rejecting the appeal, but extend[ing] to permitting the decision to be varied”.

iii. When considering the scope of the Respondent’s appellate function, any decision required it to give effect to its obligations in section 3(1) of the Building Safety Act 2022 (‘the 2022 Act’) on the [NAME_9] to (a) secure the safety of people in or about buildings in relation to risks arising from buildings, and (b) improve the standard of buildings.

iv. A narrow construction of its powers would lead to the perverse outcome that the Respondent would be unable to highlight and act upon non-compliance, despite evidence of non-compliance being in its possession, which would be at odds with section 3(1) of the 2022 Act, and it would also lead to ‘hiding’ any ‘faults’ behind the veil of the regularisation certificate.

v. It relied on two ‘authorities’:

• MWH UK Limited v Health and Safety Executive [2014] EWHC 427 (Admin) at para 37 (in which it said it was found to be the inherent power of a Tribunal to modify [NAME_42], “where breaches of legislation are found”, by putting itself in the position of the inspector to identify the cause; and

• The Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the Upper Tribunal Rules’) rule 24(1B)(a) which would allow it as an appellate body to similarly depart from earlier reasoning during the course of an appeal.

90. Provided with that “Skeleton Argument” was the witness statement from [NAME_32]. In it, he explains he was “commissioned by a [NAME_20]” to “review the Applicant’s appeal in relation to drainage issues”.

91. As far as process is concerned, he described it as follows:

10. The process requires that:

• [NAME_35] consulting site plans and detailing

• Wind pad post construction detail.

• Ground & first floor plan.

• [NAME_36] structural engineers report.

• [NAME_23], Class 1, Build Over Agreement.

• London Borough of [NAME_15] 2 complaint letter.

• BGS Geology Viewer.

92. Much of that documentation was not included in the bundle, particularly anything evidencing decision making by another person in relation to the process adopted for the appeal or the ‘summary of issues’ relied on, and the clearly ample history of communication between the Respondent and [NAME_15] from which the Applicant was excluded.

93. Predominantly, [NAME_32]’s witness statement seeks to justify his conclusions that standards H1 and H4 in respect of the works had not been met.

94. His paragraphs 13 – 21 in fact identify a lack of information on that question, to permit him to make a decision that H1 and H4 had been complied with, rather than non-compliance. He does not, in that witness statement, identify that he is concerned that the works are unsafe.

95. At the hearing, the Respondent did not contest [NAME_43] [NAME_43]’s witness statement for the Applicant, in which he states at paragraph 4.3: “There have been no previous references to non-compliance with Parts H1 and H4 of the Building Regulations even though the comprehensive Tracker document was established and maintained throughout 34 months of personal involvement I had on this project in a technical capacity.” That is the most obvious explanation for the stated insufficiency of evidence [NAME_32] complained of.

96. Documentation as required by directions 2a. and b. was absent from the Respondent’s documents. It is wholly unclear what the Respondent thought the ‘decision’ of [NAME_14] was, with which [NAME_32] and/or whoever the other decision makers were tasked to investigate.

97. It is readily apparent that it was not until the eve of the hearing that the Respondent sought the involvement of counsel. At 20:27 on Friday 14 November 2025, the Respondent emailed to the Tribunal a documents entitled “Written Submissions” prepared by [NAME_10]. At 8:20 on the morning of the hearing, the Respondent emailed a “Respondent Addendum Statement”, purporting to provide a statement of truth for the “Skeleton Argument” dated 4 November 2025.

98. [NAME_10]’s submission in his “written submissions” was that: “It is acknowledged that the Respondent is in breach of the directions. However (i) this is an important matter that has not been given any judicial consideration previously, relating to the powers of the [NAME_9]; and (ii) a significant proportion of this argument will relate to statutory interpretation, which in turn relates to submissions of law.” I read that as an application to rely on the “Skeleton Argument” as the Respondent’s “statement of case”, now that a statement of truth had been provided for it. I waived the requirements of the directions under rule 8 Tribunal Procedure (First Tier Tribunal) (Property Chamber) Rules 2013 to permit the Respondent to rely on that document as its (and from here on referred to as its) statement of case.

99. However, no explanation at all was provided for the failure to comply with my directions, nor was an argument made by [NAME_10] that “written submissions” were in fact intended to be an amendment to the statement of case that the Respondent had provided.

100. I therefore limited [NAME_10] to arguments arising from the statement of case fleshed out by that document (redesignating his “written submissions” a “skeleton argument”). The directions had been very clear that the Respondent needed to set out its arguments both in law and on the facts by 21 October 2025. It would once again be prejudicial to the Applicant to have to meet a case that had not in fact been pleaded, and of which it had had zero working days’ notice. In contrast, the Respondent was deprived of reliance on what, in the end, was a very small part of that skeleton argument (the only excluded paragraphs being 23 – 26 of that skeleton argument), the Applicant accepting that in large part the other new points would be of assistance to consider on this appeal.

Hearing

The Respondent’s submissions

101. [NAME_10] sensibly conceded that the decision from which the Applicant had appealed to the Respondent was that given by email by [NAME_16]. He also accepted that the Respondent has neither sought nor provided any documents preceding it, which support that decision. He therefore did not pursue the factual argument. He explicitly accepted that the Respondent had substituted its own decision for [NAME_14]. He submitted “the importance to the [NAME_9] is the challenge to the powers, rather than the particular points”. The hearing therefore took place on submissions only.

102. He also distanced himself from the ‘authorities’ relied on by the statement of case, conceding that they offered no assistance.

103. [NAME_10]’s submissions on behalf of the Respondent were, to begin with, that there is no definition of ‘appeal’ within the Act (or, as I understand his submission, generally). There was no special meaning of that word. The specific powers given to the Respondent by the section were the defining factor for its meaning. In this case, those powers were far wider than a simple ‘review’.

104. The Respondent’s argument was that, when exercising its building functions, it is required to exercise them in accordance with the mandatory new obligations imposed on it by section 3 of the 2022 Act.

105. The appeal in regulation 18A is a ‘building function’ as defined in the 2022 Act. The Respondent is tasked with the purposes as set out in section 3 of the 2022 Act. The Respondent must exercise building functions with a view to securing the safety of people in and about a building, in relation to building safety risks, and improving the standard of buildings. Any function of the Respondent within its appeal jurisdiction under regulation 18A of the 2010 Regs must be interpreted through that lens.

106. He relied on what he says is the Explanatory Memorandum for regulation 18A:

This instrument is one of a package of statutory instruments laid by the Department for Levelling Up, Housing and Communities, to implement changes to the current building control system and deliver improvements across the entire built environment, as legislated for through the Building Safety Act 2022 (the 2022 Act), and the amendments made through that Act to the Building Act 1984.

The changes to the building control regime include a new building control process for higher-risk building work, and changes to non-higher risk building work to raise standards across the built

environment. These include clear legal responsibilities for those involved in the commissioning, design and construction of building work, and those who carry out building control.

These Regulations also address arrangements for a single building control body for projects comprising both higher-risk buildings and non-higher-risk buildings.

107. I should note that [NAME_10] did not provide a copy. The wording above indicates that the Memorandum is not related to regulation 18A specifically, but to the Building Regulations etc. (Amendment) (England) Regulations 2023) generally.

108. In the Respondent’s submission, it is required and permitted to ‘step in’ where it sees that a [NAME_14] decision is wrong, but that permitting the appeal to it would conflict with its express obligation in section 3 of the 2022 Act. [NAME_45] has seen fit to create a “specialist control body”. The Respondent is, [NAME_10] submits, a second line of building control for the purposes of the 2010 Regs.

109. If the Respondent was informed, or discovered, in the course of the appeal, of a different line of argument, it was therefore necessarily open to it to say to the parties ‘what is your submission on this?’

110. The fact it did not take that course in this particular case made no difference to the question asked by the preliminary issue. Were it to have taken a different approach to the process of the appeal and specifically sought the Applicant’s representations, it would have been entitled to make the decision it did. The Respondent was, as that specialist control body, always entitled to make its own decision, regardless of the parties’ positions. If a building is unsafe for a reason not invoked by the primary decision maker, the Respondent is obliged to step in.

111. [NAME_10] submitted that section 18A(3) made no consequential provisions and provided no guidance on what is to happen if an appeal is refused; the powers in regulation 18A(3) relate only to when an appeal is allowed – in those circumstances the decision appealed against may be quashed or varied. There being no express provision, the Respondent contended that it could take any course it considered appropriate, including remaking the decision.

112. In support of that submission, [NAME_10] leaned on the powers of the Secretary of State as they were contained in section 39 of the 1984 Act as originally enacted (he did not provide a copy). Regulation 18A is, he submits, a direct replacement of the Secretary of State’s former jurisdiction under the 1984 Act. The Secretary of State’s power under that section was “unfettered” (save of course for the requirement that any decision comply with public law principles). There is no reason to believe that [NAME_45] intended its specialist control body to have lesser powers, given that it is exercising (a) the same jurisdiction, and (b) as an expert body.

113. [NAME_10] submitted that “clearly, in appropriate circumstances, the Secretary of State could and would substitute a decision, in the same manner as a Planning Inspector (who in reality acts as an agent for the Secretary of State in appeals… under the Planning Legislation)”. [NAME_10] did not provide an example or invoke authority for that submission.

114. By extension, he said, there is nothing to fetter the Respondent’s discretion to vary the decision of [NAME_14].

115. [NAME_10] contended that to hold otherwise would be to place too narrow a limit on the Respondent’s jurisdiction in carrying out its appeal function. To do so might lead, for example, to procedural errors in the giving of [NAME_14] decision resulting in a certificate being given, with no consideration of matters of planning substance because “prima facie, there are only two express things [the Respondent] may do [if the appeal is allowed]. It may quash or it may vary”. The Respondent’s role is more than simply to make [NAME_14] do its job properly. It has an unfettered right to make its own decision, regardless of the decision referred to it on appeal.

116. He submits that it must also, therefore, be implied into regulation 18A(3) (and regulation 18A(6)) that there are consequential powers – to remit to [NAME_14] for reconsideration, or for the Respondent (or the Tribunal) to substitute its own decision for the one from which the appeal was made. It “is difficult to believe that [NAME_45] intended to limit the powers given to [the [NAME_9] as a single, specialist body]”, that approach having been open to the Secretary of State under the previous legislation this process replaces.

117. He submitted that, on the accepted position that the Decision Letter cannot stand, the only possible outcomes of this appeal are that I quash or vary the Respondent’s decision. He submitted that the Tribunal must, if satisfied that the decision of the Respondent was made without jurisdiction and must be quashed, remit to the Respondent for the decision to be remade. It would be “bold”, he said, if I decided to “grant the certificate”.

118. I asked [NAME_10] whether the Respondent had reviewed the further evidence, provided by the Applicant to it after he had received the decision, in respect of standards H1 & H4. He said that it had not. He did not have an answer why not.

119. [NAME_10] asserted that whether the Respondent had refused the Applicant’s appeal, or had in fact allowed the appeal and varied the decision, was a “matter of interpretation” of the Decision Letter.

The Applicant’s submissions

120. [NAME_4] highlighted the fact that the Decision Letter itself stated, in bold, that the appeal had been refused. It was not now open to the Respondent to suggest that it had in fact permitted the appeal, and varied the decision, contrary to the bolded outcome on the Decision Letter. To suggest that the Respondent had allowed the appeal, quashed it, and substituted its own decision was extraordinary in the context of the Decision Letter.

121. In its statement of case, from which [NAME_10] had distanced his submissions, it was clear that the Respondent relied on an inherent power to modify [NAME_42] (in an Employment case). The reason that case was no longer relied on was that the analogy is plainly wrong. The power is not inherent, it is express. The Respondent had confused its powers under the 1994 Act with its powers on appeal pursuant to regulation 18A(3) of the 2010 Regs.

122. The Respondent was confined by public law principles of fairness. Ultra vires may apply to acting out-with the jurisdiction conferred by regulation 18A(3), as anticipated by the preliminary issue. However, in this case the question was not simply one of the Respondent misunderstanding its own powers. The question was not limited to one of whether the outcome of the Decision Letter accorded with the powers given to the Respondent by regulation 18A (2) – (3). The decision in the Decision Letter, culminating from the Respondent’s process, was also ultra vires in the broader sense, for any and all the reasons identified by Lord Justice Reid in Anisminic Ltd v Foreign Compensation Commission & Ors [1969] 2 A.C. 147 (HL) 167 B – F:

It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses "jurisdiction" in the narrow original sense. If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law. I think that, if these views are correct, the only case cited which was plainly wrongly decided is Davies V. Price [1958] 1 W.L.R. 434. But in a number of other cases some of the grounds of judgment are questionable.

123. The consequences of refusal by the Respondent of an appeal are simple: the decision subject to the appeal was upheld and no regularisation certificate would be issued. No powers were identified by the regulation as none were needed.

124. [NAME_4] contended that the meaning of the word “appeal” in regulation 18A of the 2010 Regs bears the ordinary meaning of the word. There is no mystery in it.

125. The Applicant asserted that the language of the regulation is absolutely clear: the appeal is against “the decision”. That must be the decision of [NAME_14] as primary decision maker. That is its scope, and it has no greater scope. That might be contrasted with the Health and Safety Act, in which there is express provision to modify an improvement or prohibition notice (he did not identify which provision; I believe that the reference is in fact to the Health and Safety at Work Act 1974 and the relevant section is section 24). No such power is contained in regulation 18A(2) or (3), and the Respondent had confused itself. On the ordinary meaning of the words, it was clear what the Respondent’s powers are.

126. In the Applicant’s submission, the reference in the Decision Letter to Part 4 of the 2022 Act is telling. If the decision was made under Part 4, the rights and obligations of the Respondent are wide and unfettered. Regulation 18A is not in that jurisdiction, and the powers conferred on the Respondent are not unfettered, but defined by the regulation.

127. Moreover, the Respondent referred to section 3(1) of the 2022 Act, but had given no thought or weight to section 3(2) which requires that regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent. Its powers and responsibilities also needed to be read to give effect to basic principles of public law, including the principle of legality ([NAME_4] cited “Ex p Simms” – no copy was provided and there are a number of authorities of that name, but it is assumed that he intended the reference to be to R v Secretary of State for the Home Department Ex p Simms [2000] 2 AC 115 (HL)). Section 3 of the Human Rights Act 1998 provides that article and convention rights must be read in such a way as to be compatible with convention rights.

128. Article 6 of the European Convention on Human Rights 1998 preserves the Applicant’s right to a fair and public hearing within a reasonable time, in the determination of his civil rights. Though the process can be modified, so as to provide for the decision to be made in private and without a hearing, there still needs to be a fair determination of the Applicant’s civil rights. Regulation 18A must be read in accordance with that.

129. [NAME_4] submitted that for the Respondent to take the position that the Applicant’s appeal had been refused but in reality allowed was incompatible with the rule of law. As to the relationship between the 2022 Act and the 1984 Act, a later statute cannot replace an earlier one. They must be read together. [NAME_45] could not have intended that the 2022 Act be read in such a way as to utterly defeat the purpose of the 1984 Act. That is why section 3 of the 2022 Act is in three parts – the Respondent needs to secure building safety but in a transparent and fair way. There is no ultimate power given to the Respondent to do whatever it thinks best.

130. The Applicant asserted that regulation 18A is incapable of being read in a way that renders the Respondent a final layer of building control. That is not the scheme that has been created. On the plain language of regulation 18A(3) of the 2010 Regs, the Respondent is not able to refuse an appeal for its own substituted reasons. The is an unfairness that goes to the heart of the ultra vires point.

131. [NAME_4] concluded that it would not be ‘bold’ for the Tribunal to allow the appeal and direct a regularisation certificate to be provided. That was how the scheme had been designed. Regulation 18A(6) did not in fact require a direction of the Tribunal – the automatic consequence of the Respondent’s decision being quashed is that they are obliged to issue or procure a regularisation certificate. [NAME_4] accepted that in an appropriate case, in which [NAME_14] had relied on a number of different grounds and the appeal was successful in respect of some but not all of those grounds, then the consequence would be variation of the decision to refer only to the unsuccessful grounds. This, however, was not such a case.

132. As to the Respondent’s argument that an interpretation of the regulation as asserted by the Applicant would result in unsafe buildings being certified, this was not such a case. Nowhere had [NAME_14] nor [NAME_32] suggested that this was an unsafe building for section 3(1) of the 2022 Act. [NAME_32] had not even made a finding that standards H1 and H4 had not been complied with – he had said he did not have enough evidence and so could not be sure.

133. The Applicant had been seeking a certificate for three and a half years. The fairest disposal of this case was to uphold the findings of the Respondent on standard A1 and quash the Respondent’s decision to refuse the appeal.

Tribunal’s decision

134. I have, unfortunately, been little assisted by the Respondent in this appeal. The way in which the Respondent put its case raises more questions than it answers. [NAME_10] made such efforts as he could to rescue the position in the hearing, but could do little given the way in which the Respondent had asserted its case. [NAME_4] was put in a position that he had to react to the oral submissions made by [NAME_10] as they were developed but not foreshadowed by the Respondent’s statement of case, which is far from the process I required by the directions.

135. As I stated at the hearing, when tasked to construe a statute, one does not work backwards from what the statute might have been intended to mean, informed by what a preceding version of something it replaced said, as contended by [NAME_10]. The starting point is the plain and ordinary meaning of the wording of the provision, within the scheme of the statute, informed by external material (e.g. explanatory notes) if necessary. I referred the parties to R (The Good Law Project) v Electoral Commission [2018] EWHC 2414 (Admin), which addresses the principles of statutory construction. Giving the judgment of the court, Lord Justice Leggatt sets out the following:

Statutory interpretation

33. Save for one point, there is no dispute about the principles of statutory interpretation. The basic principles are that the words of the statute should be interpreted in the sense which best reflects their ordinary and natural meaning and accords with the purposes of the legislation. It is generally reasonable to assume that language has been used consistently by the legislature so that the same phrase when used in different places in a statute will bear the same meaning on each occasion – all the more so where the phrase has been expressly defined.

34. It is also generally reasonable to assume that [NAME_45] intended to observe what [NAME_46] on Statutory Interpretation (7th Edn, 2017) in section 27.1 calls the “principle against doubtful penalisation”. This is the principle that a person should not be subjected to a penalty – particularly a criminal penalty – except on the basis of clear law. As noted earlier, incurring referendum expenses in excess of the prescribed limit and, in the case of a permitted participant, failing to report referendum expenses correctly are potentially criminal offences. In these circumstances counsel for the Electoral Commission and Vote Leave both submitted that the definition of “referendum expenses” should be construed strictly and any ambiguity or doubt about its meaning resolved in favour of the narrower interpretation so as to avoid doubtful penalisation.

35. In response, counsel for the claimant cited R (Junttan Oy) v Bristol Magistrates’ Court [2003] UKHL 55; [2003] ICR 1475, para 84, where Lord Steyn described this principle of statutory interpretation as one of last resort. Other authorities confirm, however, that that description of the principle understates its continued vitality: see e.g. R v Dowds [2012] EWCA Crim 281; [2012] 1 WLR 2576, paras 37-38. We think the position was fairly stated by Sales J in [NAME_47] v Secretary of State for the Home Department [2014] EWHC 2872 (QB), para 48, when he said:

“The principle of strict interpretation of penal legislation is one among many indicators of the meaning to be given to a legislative provision. It is capable of being outweighed by other objective indications of legislative intention, albeit it is itself an indicator of great weight.”

136. R (on the application of O (a minor, by her litigation friend [NAME_48])) et ors v Secretary of State for the Home Department [2022] UKSC 3 sets out at paragraphs 29 – 32 the weight to be given to external aids to construction, and the primacy to be given to the words of a statute themselves. Lord Hodge set out the judgment (with which the other Supreme Court Lord- and Ladyships agreed):

28. Having regard to the way in which both parties presented their cases, it is opportune to say something about the process of statutory interpretation.

29. The courts in conducting statutory interpretation are “seeking the meaning of the words which [NAME_45] used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid of Drem. More recently, Lord Nicholls of Birkenhead stated:

“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.”

(R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] AC 349, 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which [NAME_45] has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, 397:

“Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of [NAME_45].”

30. External aids to interpretation therefore must play a secondary role. Explanatory notes, prepared under the authority of [NAME_45], may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: [NAME_46], Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in [NAME_45] which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole.

31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, 396, in an important passage stated:

“The task of the court is often said to be to ascertain the intention of [NAME_45] expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of [NAME_45]’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to [NAME_45] in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. … Thus, when courts say that such-and-such a meaning ‘cannot be what [NAME_45] intended’, they are saying only that the words under consideration cannot reasonably be taken as used by [NAME_45] with that meaning.”

137. It is only if, having undertaken that task, giving the words their natural meaning would lead to ambiguity or obscurity, or result in absurdity, might I be permitted to go to Hansard (Pepper v Hart [1993] AC 593). [NAME_10] tentatively suggested that any conclusion that did not ‘read in’ additional powers into regulation 18A (whether the ability by the Respondent to substitute its own decision, or to remit the matter to [NAME_14] for a fresh decision) would result in absurdity, neither party in this case relied on Hansard.

138. [NAME_10] submits that the word ‘appeal’ in regulation 18A is undefined and in essence could mean different things to different people. In this context, he in effect argues that ‘appeal’ should be read as an intervention of a different quality, which involves the appellate body’s own independent analysis and view of the works undertaken at the property, leaving aside the decision made by [NAME_14]. What he therefore argues is that the appeal that the Respondent is tasked with is a consideration of the works de novo, to see whether they comply with the standards.

139. In context, the word ‘appeal’ appears at regulation 18A as follows (emphasis added):

18A.—(1) A person (“the appellant”) who has—

…

140. Firstly, I reject the Respondent’s submission, insofar as it is intended to suggest that the word ‘appeal’ is meaningless in and of itself. ‘Appeal’ is a very common term in legislation, and a widely understood process not just to lawyers but to the general public. It might be thought that it needs no further elaboration, so common is its consistent usage. Nor did the Respondent’s statement of case assert that an appeal was anything other than an appeal, or that the term was not understood by the Respondent in a way that departed from that common understanding. This was a matter raised by [NAME_10] for the first time.

141. It would be artificial to allow that it has no meaning. One source of such a meaning is provided in Jowett’s Dictionary of English Law (6th Ed: revised 15 December 2023):

(3) The usual modern meaning in law is to challenge the decision of a lower court or tribunal before a higher one; or (as a noun) the judicial examination by a higher court of the decision of an inferior court or tribunal. A right of appeal arises only where granted by or under a statute. There are no common law rights of appeal… The main purposes of an appeal are to enable a higher court (a) to review or reconsider the lower court’s decision so as to ensure, for the benefit of the litigants, that justice has been done; and (b) to lay down guidelines to be followed (where applicable) in future cases. There are many variations in the rules governing appeals. An appeal may lie as of right, or permission to appeal may be required (as it is for all appeals from England and Wales to the House of Lords); and may be general or limited (e.g. restricted to questions of law). Depending on its powers and/or its practice the appellate court may confine itself to examining the record of the proceedings in the court or courts below, hear additional evidence if it thinks it necessary or hear the whole case afresh; and it may confirm or vary the decision of the court below, substitute its own decision, or order a new trial. Where an appeal is described as being by way of a rehearing the appellate court will examine all the evidence given at the trial but will not normally literally rehear the whole case. In “review” the function of the superior judicial authority is limited to re-examining the inferior tribunal’s conclusions of law as to the legal consequences of the facts as they have been found by the inferior tribunal”- Attorney-General v Ryan [1980] A.C. 718 HL at 729 per Lord Diplock. An appeal is in the nature of a rehearing, unless the contrary is implied or expressed. An appellate court may wish to defer to the court of first instance on findings of fact or on any other matter as to which the appellate court considers the court of first instance better placed to form an opinion. See due deference.

142. Does it bear its ordinary meaning in this context? There is no reason to suppose that [NAME_45] did not intend it to bear its usual and ordinary meaning. There is nothing in the 2010 regulations that indicates that the Respondent’s powers on appeal are such that the term should be read as anything other than an appeal, usually so understood.

143. Albeit in this case the powers have been delegated to the Respondent to act in a quasi-judicial capacity, that is also something for which there is ample precedent. [NAME_45] anticipated something objectively different from an ‘appeal’ commonly so understood, for example an Ombudsman-style complaint process, the concomitant ordinary expectation is that either it would have used an alternative word to describe the intended process, or ‘appeal’ would have been given a specific definition in this usage. No such definition appears in the 2010 Regs.

144. The only person entitled to assert the reasons for the appeal is the aggrieved person. The only decision they are entitled to appeal against is the decision of [NAME_14] (regulation 18A(1)). Both the Applicant and the Respondent are equally confined to specific grounds, as the only ones over which the Respondent has jurisdiction to uphold an appeal:

(a) that the decision was based on an error of fact;

(b) that the decision was based on an error of law;

(c) that the decision was unreasonable; or

145. The exercise of the Respondent’s jurisdiction is clearly, on the plain words of sections 18A(1) and (2), confined to and circumscribed by whether the decision made by [NAME_14] was ‘bad’ on specified grounds, which themselves resonate of the public law principles on which the Appellant in this case relies.

146. Is the Respondent’s decision confined by the reasoning behind [NAME_14]’s decision? That is a more difficult question.

147. Firstly, the statutory instrument does not expressly confer a right on the Respondent to substitute its own decision, or to consider the originating request made by the Applicant to [NAME_14] afresh, though there are many statutes (and court procedures implementing those statutes) by which those powers are expressly conferred. The regulation does not make provision for the Respondent to consider whether the property complies with the standards de novo; its jurisdiction is confined within the corners of the decision that has already been made.

148. The Respondent is not assisted by the powers formerly granted to the Secretary of State by section 39 of the 1984 Act. Firstly, section 39 provided no qualification or impediment to the Secretary of State’s exercise of discretion. Secondly, it explicitly empowered the Secretary of State to give such directions for dispensing with or relaxing building regulations as may be appropriate.

149. Regulation 18A no longer contains the same powers. The very fact that regulation 18A specifically limits the jurisdiction of the Respondent, and does not confer on it the power to dispense with or relax the building regulations, indicates that is a deliberate choice by [NAME_45]. One should be reluctant to ‘read in’ additional powers in circumstances where the prescribed limits of the powers are sufficient for the exercise of the jurisdiction intended.

150. [NAME_10] argues, by reference to section 3 of the 2022 Act, that reading regulation 18A(2) and (3) in that way would be inconsistent with the powers and obligations conferred on it by that Act. He concentrated his submission on section 3(1), to the exclusion of section 3(2), as did the Respondent in its statement of case.

151. Section 3(1) is a statement of the Respondent’s obligation to exercise its building functions with a view to improving building safety and building standards. Delivery of those powers is constrained by a principled approach (section 3(2)). The Respondent must carry out its regulatory activities transparently, accountably, proportionately and consistently, and intervene only in cases where action is needed.

152. Section 3(3) makes clear that the Respondent’s regulatory activities are “subject to any other requirement affecting the exercise of the function”. That wording itself indicates that the regulatory activities in section 3 are subjugated where a statutory requirement prescribes that a building function be carried out more narrowly than the very broad genre of ‘building safety and standards’ section 3(1) could encompass.

153. Moreover, the explanatory notes to section 3 of the 2022 Act give specific examples in which the regulatory function is aimed not at an individual seeking enforcement of their civil rights, but of cultural change in the industry. Notes 145 – 148 make this very clear, in particular: “[NAME_9] will not be responsible directly for the construction or management of buildings — this Bill, alongside the Building Act 1984 and Building Regulations, assigns clear duties in respect of those matters”. Example 3 given is an example of influence on industry standards by, for example, policy influence. That accords with the section 6 of the 2022 Act, in which industry, and in particular inspector, improvement through the activities of the Respondent is anticipated.

154. The fact that the Respondent is conferred specific rights and obligations of enforcement by Part 4 of the 2022 Act does not assist it; those are separate powers confined within specific definitions. Those powers are indeed wide, but wholly inapplicable to anything but the higher-risk buildings with which that Part is concerned.

155. The scheme of the 2022 Act therefore seems to confirm that regulation 18A of the 2010 Regs is a separate and distinct matter of civil rights, in which the Respondent has been given specific appeal jurisdiction. Its powers are contained within that provision. There is no justification in reading additional powers into the regulation where those conferred by it are specific, limited, and an apparently conscious departure from the very wide powers previously conferred on the Secretary of State, unless the powers conferred do not work in practice.

156. The decision to be made by the Respondent at stage one of the Applicant’s appeal was a binary one: was [NAME_14]’s decision ‘bad’ on any of the grounds in regulation 18A(2)?

157. Applying regulation 18A, if the answer to the question was ‘no’, the result was simple: the appeal would be refused, and the decision of [NAME_14] would stand. The Applicant would not get their regularisation certificate unless they made a second appeal to this Tribunal, and demonstrated, in turn, that the Respondent’s decision was ‘bad’ on any of those same grounds in regulation 18A(2) (regulations 18A(5)).

158. If the answer to the question was ‘yes’, [NAME_14]’s decision is ‘bad’ for any of the reasons in regulations 18A(2), then the appeal must be allowed. There is no alternative choice open to the Respondent.

159. Section 3 of the 2022 Act does not imply into the appeal process the power for the Respondent to simply ignore the decision of [NAME_14] and step into the role of primary decision maker. It is not, as it asserts, a second line of building control in exercising the regulation 18A jurisdiction. Its whole jurisdiction is seated in [NAME_14]’s decision. Section 3(3) specifically subjugates section 3(1) in the circumstances.

160. Looking at the scheme of the 2010 Regs, a confined reading of the words used fits with the position of [NAME_14] being the only decision maker, particularly in the absence of any provision or process requiring or permitting either an inter partes hearing, witness evidence of any kind, or expert evidence.

161. Nor do the provisions anticipate or permit an independent investigation of the property by the Respondent. This was recognised in [NAME_32]’s description of the process with which he was tasked:

12. All conclusions of the evidence are drawn solely from these documents and the opinions expressed within those documents; no site inspection nor corroboration of the evidence was undertaken…

162. The process described is not an investigative process. It is a reviewing process, albeit the review is carried out by a specialist body. That fits with the question in issue in the appeal being [NAME_14]’s decision, as the primary decision maker with whom the power to refuse or grant a regularisation certificate lies.

163. When allowing the appeal, the Respondent may only either quash the decision of [NAME_14], or vary it, in accordance with regulation 18A(3). [NAME_10] contends that the Secretary of State had much wider powers, and it must have been intended by [NAME_45] that those powers be conferred on the Respondent. But Section 18A(3) does not contain the powers conferred on the Secretary of State.

164. In reality, [NAME_10] submits, the Decision Letter indicated that the appeal had been allowed and the decision was varied to refuse the certificate on the basis of standards H1 and H4.

165. However, that is to confuse the decision with the reasons for the decision. The decision was to refuse a regularisation certificate. The reasons for the decision were, of course, not provided by [NAME_16]. In reality, what the Respondent has done in this case is to is substitute its own reasoning, in order to come to the view that the decision was not ‘unfair’, and so to refuse the appeal. The Decision Letter cannot be objectively read in any other way.

166. Does reading the regulation in that way work in practice? That is the key plank of [NAME_10]’s submission. He posits that a [NAME_14] could make a decision so bad that, despite the outcome of the appeal required by the regulation 18A(2) analysis, the Respondent must be permitted (and intended) ‘step in’ to substitute its own the decision for [NAME_14]’s, in exercise of its section 3 2022 Act powers. Construction of regulation 18A on a narrow basis would, he says, lead to absurdity.

167. I make clear that this appeal is not such a case. There is nothing to indicate that the property is unsafe. More than that, [NAME_32] does not even find that it ‘fails’ to meet standards H1 & H4, but rather that ‘he can’t be sure’ that the works meet the standards on the evidence provided (in circumstances in which there is no evidence that the Applicant was to provide any evidence on H1 & H4 compliance by [NAME_14] prior to its refusal, was not put on notice of the H1 & H4 points being taken by either [NAME_14] or the Respondent at any point throughout the course of the appeal, and in response to the Decision Letter the Applicant provided additional evidence has not been considered by the Respondent for unidentified reasons).

168. I am faced with the case I am faced with. My determination is a determination on the facts of this case. Were there such an appeal on different facts in the future, there would be the opportunity for the parties to it to properly argue the position. This would be an inappropriate case in which to close off the argument, which appears to be what the Respondent seeks as an outcome, particularly where it has been so poorly argued by the Respondent. The Tribunal is not a court of record, and this decision is not binding on any other Tribunal hearing cogent detailed arguments.

169. However, it would seem to me that regulation 18A makes sufficient provision, in the circumstances the Respondent posits, to address any such problem (leaving aside the fact that the Respondent may already be able to do so via separate application of its 2022 Act jurisdiction or another instrument), and it is that power I must consider when exercising the Tribunal’s powers on appeal. Therefore, it merits brief discussion.

170. If the decision of [NAME_14] is ‘bad’, as it was in this case, then the result of the application of the Respondent’s appeal jurisdiction is that the appeal must be allowed. The decision in regulation 18A(2) is binary.

171. There are then two choices open to it: quash the decision of [NAME_14], or vary the decision. Regulation 18A(3) does not permit both actions to be taken simultaneously. The Respondent must make a choice which course is the most appropriate, and explain why it has made its choice.

172. Where the Respondent has concerns about the quality of [NAME_14]’s investigation into the building standards, it seems to me that it would exercise the power to quash the decision of [NAME_14]. It would need to give reasons for the exercise of that power. The effect of quashing the decision renders the position that ‘the decision was never made’. As explained above, the Respondent does not appear to have the power by regulation 18A(3) to substitute its own decision. Nor is the jurisdiction in paragraph 18 exercisable by anyone other than the ‘relevant authority’, defined in the 2010 Regs for this type of application as the local authority (regulation 18(8)(a)). As clarified by the Supreme Court in the planning jurisdiction, the result is that the Respondent has the power to remit to the relevant authority ([NAME_49] v [NAME_50] DL Limited [2022] IEHC 704). It is tolerably clear that the use of the word ‘quash’ in the regulation 18A(3) powers therefore bears a reading of ‘quash and remit’, in light of the line of authorities and the scheme of the Regulations.

173. Whether to remit is an exercise of discretion that also needs to be reasoned. One of the primary considerations is whether fairness, justice and proportionality require the request to be reconsidered de novo (Crofton).

174. Another of the factors in whether or not to remit is whether, if the decision is remitted to the same decision maker, that would result in perceived unfairness (in the public law sense) to the affected parties, or would damage public confidence in the decision-making process; HCA International Limited v CMA [2015] EWCA Civ 492.

175. One of the factors in whether to remit might, in an appropriate case, be a coincidence of the need for the Respondent to exercise its independent powers and obligations in the 2022 Act.

176. Conversely, by application of the overriding requirement of proportionality by which the Respondent and HSE appear to be guided, and as required by section 3(2) of the 2022 Act, and after considering the factors that might be relevant, but most importantly the public law factors, the Respondent might decide to vary the decision (i.e. to grant the regularisation certificate).

177. It therefore appears unnecessary to read-in the ability of the Respondent to substitute its own decision; in a serious case in which serious failings are identified, the decision should be remitted to be made again.

Conclusion

178. For all of the reasons above, doing my best with the arguments put forward by the Respondent in the circumstances of this case as set out above:

(a) I reject the submission that ‘appeal’ in this provision means anything other than what it is used in common language to describe – seeking the decision of a higher authority over a particular question.

(b) I find that the initial question conferred on the Respondent by an appeal, i.e. whether the decision was ‘bad’ for any of the specific reasons set out in regulation 18A(2), is seated in and circumscribed by the reasons for decision-maker’s decision (in this case, the ‘decision’ made by [NAME_16] to refuse a regularisation certificate).

(c) If the Respondent considers that the decision made by the decision-maker is correct, but that the reasoning for the decision is improperly expressed or insufficiently full, then the Respondent should refuse the appeal and give clear and cogent additional reasons why the decision is correct. Substituting the reasoning is simply explaining why the decision made is correct on the basis of the evidence that was provided for making it – the reasoning is not the decision.

(d) However, I find that the Respondent is, in that exercise, prohibited from introducing grounds of refusal that were not relied on in the decision-maker’s decision. There is no power conferred on the Respondent by the 2010 Regs to substitute its own decision. It is not, as it submitted, in the position of second line building control. To substitute its own decision is an act of entering the arena, divesting the guise of appellate body and adopting the mantle of party to the dispute.

(e) I find that once the Respondent had conducted that enquiry, if it refuses the appeal, it is unnecessary to construe regulation 18A(2) as conferring any further powers on the Respondent. The natural consequence of the refusal of the appeal is that the refusal to grant a regularisation certificate stands. The Respondent is at that point functus.

(f) Only if the appeal is successful does the Respondent have the power to quash or to vary the decision. The Respondent has no power to both refuse the decision and vary it.

(g) It also has no authority to introduce its own basis for suggesting the building does not conform with standards – the decision-making power is conferred on the local authority, and the Respondent’s appeal task is confined within the local authority’s decision. A power to vary the decision is not the same as a power to substitute the Respondent’s own decision on new grounds introduced by itself. Variation of a decision is seated in the decision to be varied. Substitution is not seated in that decision. Regulation 18A(3) does not contain that power. Regulation 18A(1) clearly confers jurisdiction within the confines of the decision.

(h) The Respondent’s decision in this case was plainly a refusal on the basis of its own grounds and was ultra vires.

(i) Having carefully considered the evidence, for all of the reasons set out above, and particularly because:

a. I am satisfied given the conduct by the Respondent of the appeal generally that to quash the Respondent’s decision would result in perceived unfairness (in the public law sense) to the Applicant, or would damage public confidence in the decision-making process, in particular because the Respondent has put itself in the position of decision maker and introduced breach of standards that [NAME_14] did not rely on, with which [NAME_14] could hardly disagree;

b. The Respondent’s best evidence is that it is ‘not sure’ whether H1 & H4 have been complied with; there is no finding that there is a breach of those standards;

c. The Applicant has provided further evidence that the Respondent has failed to consider that addresses those standards, for which the Respondent has no explanation; and

d. On that basis, it would not be a proportionate to remit the appeal to the Respondent based the fact that 1. it is not the responsible entity for the regulation 18 decision; 2. it’s process and Decision Letter are sufficiently bad as to undermine public trust in any remade decision it might give; 3. even if the Respondent were to redetermine the appeal and remit to [NAME_14], any new decision of [NAME_14] would be polluted by the partisan actions of the Respondent in the appeal (such that [NAME_14] cannot but make the H1 & H4 finding imposed by its [NAME_9];

4. The Applicant has been subjected to an unwarranted delay of over two and a half years, and any further delay will substantially prejudice him; and to refuse the regularisation certificate on the basis set out by the Respondent would neither be a fair nor proportionate interference with his civil rights, I consider that variation of the Respondent’s decision is the only fair exercise of the Tribunal’s powers in regulation 18A(6).

179. For the reasons set out above, I therefore vary the decision of the Respondent as follows:

(a) the appeal from [NAME_14]’s decision on 21 June 2025 is upheld; and

(b) the decision is varied to grant the required regularisation certificate.

180. The Respondent would be well advised to secure the issuing of the regularisation certificate as a matter of urgency, given the significance of 14 December 2025.

181. It is well known that the Respondent/HSE has been given a large number of new significant and difficult responsibilities, over a very short period of time, and is not as well-resourced as those significant responsibilities appear to require (one need only look at the delays being experienced by those in this Tribunal seeking Gateway 2 approval in the Remediation Order jurisdiction to see the effect of this in practice). I should and do make it clear that I do not consider that the Respondent’s actions in the appeal to it were malicious or motivated by anything other than confusion and a lack of clear guidance, together with an overzealous approach to its building functions in this case.

182. It is not for this Tribunal to guidance for how the appropriate enquiry should be conducted. However, a public body making decisions affecting civil rights must be very aware of its public law obligations. The manifold issues arising from the Respondent’s conduct of this appeal are sufficiently serious to render the decision ultra vires in the Anisminic sense. It is hoped, and indeed it was [NAME_10]’s express submission, that the Respondent will take the lessons of this case as an opportunity to consider its processes.

Name: Nikki Carr Date: 2 December 2025

Rights of appeal

By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the Tribunal is required to notify the parties about any right of appeal they may have.

If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case.

The application for permission to appeal must arrive at the regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.

If the application is not made within the 28 day time limit, such application must include a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit.

The application for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking.

If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).