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Time is key, as inspectors face the fallout of failing to notice

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legal matters

When is an initial notice under section 47 of the Building Act 1984 not an initial notice?

The answer is in Butler & Young v Bedford Borough Council (20 May 2004). While the issue that the High Court resolved was a narrow one, it is, as the judge observed, an important one of general application. It also gives an insight into the nitty-gritty of statutory interpretation, and why there may not always be a straightforward answer to what appears to be a simple question.

The parts of the statute that the judge had to construe relate to private approved inspectors. Butler & Young was instructed to perform this role in relation to works for which Bedford Borough Council was the local authority.

The act requires an initial notice to be given by the builder and approved inspector to the local authority. Bedford knew that works had started by 3 July 2002, but Butler & Young did not serve an initial notice until 4 July.

Therein lay the problem.

Bedford said that for a notice to be effective, it had to be served before works started. It decided the notice was invalid, and disregarded it.

Bedford told Butler & Young to take steps to regularise the position.

Butler & Young disagreed with Bedford's approach. It argued that as Bedford had not formally rejected the initial notice (as it was entitled to do on specific grounds set out in the act), it was presumed to have been accepted, and was therefore valid. It continued as usual, and sent a plans certificate to Bedford. Bedford rejected the plans certificate on the basis that there was no initial notice in force. The act says that is a valid ground for rejecting a plans certificate.

Butler & Young appealed Bedford's refusal to accept the plans certificate to the magistrates' court. The magistrates found in favour of Bedford. Butler & Young appealed to the High Court.

Mr Justice Collins identified the nub of the question as being whether it is possible to opt to use an approved inspector after the works have started. Bedford argued not. In support of that it pointed to the wording of the act.

An initial notice has to be served by someone intending to carry out work. Bedford also said that an approved inspector has no means of ensuring that work carried out before their appointment has been done properly. Unlike a local authority, an approved inspector has no power to order work to be opened up.

Butler and Young drew the judge's attention to section 53(7), which deals with the position when an initial notice that was valid has ceased to be in force and work has been carried out. That section says that a new notice can be served.

That, it said, showed that parliament had clearly determined that an initial notice could be served after work had been carried out.

The judge concluded that the overall scheme under the act was as Bedford had interpreted it. He noted that there is a requirement that works should not commence unless notice has been given to the local authority or the matter has been made the subject of an initial notice. If that initial notice could be served after works started, it would be possible for works to be commenced, and then made lawful retrospectively by serving an initial notice that the local authority could only reject on the basis of specific grounds set out in the act. That might compromise the control that the local authority exercises in the public interest.

Addressing the difficulty apparently presented by section 53(7), the judge said that it must mean one of two things, but reached no conclusion as to which interpretation was right. He decided that whichever meaning it had, that was insufficient to dissuade him from his overall conclusions regarding initial notices.

The judge held that a notice served after the works had started was invalid. Bedford was therefore entitled to disregard it, and did not need to actively reject it. It followed that it was entitled to reject the later plans certificate. So when is an initial notice not an initial notice? Answer: when it is not served before the works start.

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