Keystone Law’s Construction partner Louise Elmes has successfully advised the applicant in a pivotal case against the Building Safety Regulator (the Regulator), resulting in the first decision on the scope of the Regulator’s powers on appeal under section 18A(2) of the Building Regulations 2010 (the Regulations).

Section 18A governs appeals against local authority refusals to grant certain certificates for completed building works. This appeal was made to the First-tier Tribunal Property Chamber (Residential Property) pursuant to section 18(A)(5) and concerned the Regulator’s refusal to uphold the applicant’s appeal against the local authority’s refusal to grant a regularisation certificate (the Regulator’s Decision).

The Tribunal considered whether, when exercising its appellate jurisdiction under sections 18A(2) and (3) of the Regulations, the Regulator is 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. The Tribunal found that the Regulator could not do so, allowed the Appeal, and highlighted concerning inadequacies of the local authority and Regulator. The issues with the Regulator’s Decision were manifold and included:  a delay of 11 months; failure to identify its powers, the object and grounds of appeal, and to set a procedure to resolve any factual dispute; misstatements of law; want of procedural fairness, transparency, proportionality and natural justice; apparent (if not actual) bias; and acting in breach of the Tribunal’s directions.

Louise Elmes said:

“I am delighted with the outcome of this case. It has taken nearly three and a half years to navigate and address the barriers put up – all without any legitimate justification – by the local authority and the Regulator and obtain the regularisation certificate. Whilst our client’s persistence is commendable, this should not be necessary, and many parties would have found the process unfathomable, cost-excessive, and simply given up. 

“The Tribunal’s decision is damning as to the Regulator’s competence and conduct. The industry needs a regulator which is competent and effective. More and more problems are arising with the Regulator’s failure to deal with matters properly or in a timely manner, and because of the lack of statutory guidance on its operations and lack of transparency, there are many parties who do not know how to challenge it. We hope that this case is a step forward in achieving a properly functioning regulator.”

Keystone Law instructed William Lacey of Crown Office Chambers.

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