Scope determination appeal: appeal to the Secretary of State under Section 101A of the Building Act 1984
Source: gov.uk (2025-05-28)

This guidance outlines the procedures for submitting a scope determination appeal to the Secretary of State for the Ministry of Housing, Communities and Local Government.

Following the initial statement (https://buildingsafety.campaign.gov.uk/building-safety-regulator-making-buildings-safer/building-safety-regulator-news/mhclg-and-bsr-reviewing-first-tier-tribunal-on-classification-of-roof-gardens/) dated 18 October 2024, the Ministry of Housing, Communities and Local Government has carefully considered the views expressed by the Tribunal in the First-tier Tribunal decision (https://www.gov.uk/residential-property-tribunal-decisions/smoke-house-and-curing-house-18-remus-road-london-e3-2nf-lon-slash-00bg-slash-hyi-slash-2023-slash-0024) dated 3 July 2024.

The department recognises the need to provide clarity within the legislation. We are consulting the Building Safety Regulator and other relevant stakeholders on a proposal to amend the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023 to make it clear that roof gardens should not be considered a storey when determining whether a building is a higher-risk building under section 120D of the Building Act 1984 and section 65 of the Building Safety Act 2022.

In the meantime, the department’s view remains that roof gardens are not storeys for these purposes. This is the basis for current government guidance (https://www.gov.uk/government/collections/guidance-on-the-criteria-for-being-a-higher-risk-building), which the sector and regulatory bodies should continue to refer to.

Introduction

The Building Safety Act 2022 (https://www.legislation.gov.uk/ukpga/2022/30/contents/enacted) included provisions through which specific appeals known as scope determination appeals may be determined by the Secretary of State.

The new building control regime, introduced through the Building Safety Act 2022 (https://www.legislation.gov.uk/ukpga/2022/30/contents/enacted), makes the Building Safety Regulator (the Regulator) the building control body for all building work carried out on or to create higher-risk buildings and requires regulatory approval before building work can begin.

In the instance where a developer submits a building control approval application, initial notice or amendment notice to the local authority, and the local authority rejects it on the basis that it is or contains higher-risk building work, which falls under the remit of the Regulator. The developer can appeal the local authority’s decision to the Secretary of State. This appeal route is known as a scope determination appeal.

Scope determination appeals are made to the Secretary of State under section 101A of the Building Act 1984 (https://www.legislation.gov.uk/ukpga/1984/55/section/101A). Regulation 18E (https://www.legislation.gov.uk/uksi/2010/2214/regulation/18E) of the Building Regulations 2010 sets out the procedural requirements for this type of appeal.

This guide applies to building work being carried out in England only.

Making a submission for scope determination appeal

A scope determination appeal can be made for the following prescribed applications:
- a building control approval application with full plans
- initial notice
- amendment notice
A scope determination appeal must be made within 28 days (which includes weekends but excludes bank holidays) beginning with the day after the day which the local authority refuses to consider the application or notice. For example, if your application was refused by the local authority on Thursday 8 February 2024, then you must make your appeal by 7 March 2024.

The appellant must inform the Regulator of their intention to make a scope determination appeal to the Secretary of State. This notification must be given to the Regulator at least 2 working days before emailing the department. On receipt of your appeal, and subject to the appeal meeting the requirements, the department has 8 weeks to respond.

Appellants wishing to apply to the Secretary of State for a scope determination appeal must email the Ministry of Housing, Communities and Local Government via xxx@xxx.xx (mailto:xxx@xxx.xx) to inform the department of their interest in submitting an appeal with the details of their organisation, project name, and the local authority building control body.

Please note, this email address is for enquiries about scope determination appeals only, responses will not be provided to other enquiries.