Butler & Young Ltd. v Bedford Borough Council

Under the Building Act 1984, an initial notice for private approved-inspector supervision must be given by a person intending to carry out the work. The approved-inspector route cannot therefore be adopted retrospectively after building work has commenced. A notice served after commencement is invalid, rather than merely liable to rejection on prescribed grounds. The local authority need not treat it as an initial notice and may reject a plans certificate because no valid initial notice is in force. Unauthorised work must instead be addressed through the regularisation procedure under regulation 21 of the Building Regulations 2000.

Butler & Young Limited, an approved inspector, appealed by way of case stated against the Bedford and Mid-Bedfordshire justices’ dismissal of an appeal under section 55(1) of the Building Act 1984. The justices upheld Bedford Borough Council’s refusal to accept a plans certificate.

Building work, including a mezzanine floor, had substantially commenced before an initial notice was served under section 47. The central issue was whether the statutory scheme permitted a builder to select the approved-inspector route after commencement, and whether the later notice was deemed accepted because the council had not rejected it within the prescribed period.

1. Appeal dismissed. The justices had correctly decided that the initial notice served after the works had commenced was invalid. The answers to both questions in the case stated were “yes”, and costs were summarily assessed at £4,100.
2. Section 47(1) of the Building Act 1984 refers to a person intending to carry out work. Read in the context of Part II, that language requires the initial notice to precede commencement. The distinction drawn elsewhere in the Act between proposed, intended, ongoing and completed work supported that construction.
3. The prescribed grounds for rejection under section 47(2) did not include the circumstances of this case. That did not assist the appellant because the notice was not a notice within section 47(1) at all. The deemed-acceptance provision in section 47(3) therefore did not apply.
4. The statutory scheme required building work to be notified to, and brought under the control of, the responsible body before commencement. Allowing a post-commencement notice would retrospectively regularise an unlawful commencement, potentially prevent appropriate prosecution, and deprive the local authority of the opportunity to inspect or require work to be opened up. Regulation 21 of the Building Regulations 2000 provided the appropriate regularisation route for unauthorised work.
5. Section 53(7) did not require a different result. Although its wording was difficult, it was construed consistently with section 47 so that a new initial notice could relate only to work still to be carried out after a properly commenced initial-notice arrangement had ceased. This conclusion was not strictly necessary to dispose of the appeal.

• High Court (Administrative Court): appeal by way of case stated dismissed; the justices’ decision was upheld. Questions answered “yes”; costs summarily assessed at £4,100.
• Bedford and Mid-Bedfordshire justices: on 12 November 2002, dismissed the appellant’s appeal under section 55(1) of the Building Act 1984 against the council’s refusal to accept a plans certificate.