The 5-day Invalid Conundrum

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The ACAI has engaged with a legal firm to attain a ruling on the issue of an Initial Notice being valid even if works commence within five days [or before ‘acceptance’].

It is the ACAI’s opinion that an Initial Notice is ‘Valid’ on the day it is served on the Local Authority as long as works on site have not yet commenced. If works have commenced before the Notice being served, it is ‘Invalid’ and should be returned by the Local Authority as such. This interpretation is not in dispute. It is also accepted and agreed that an Initial Notice becomes ‘In Force’ when the Initial Notice is ‘Accepted’ by the Local Authority or five days elapse. So it is a fact that an Initial Notice can be both Valid and not yet ‘In Force’ simultaneously.

The ACAI’s opinion is that if works commence whilst the Initial Notice is ‘Valid’ but not ‘In Force’, the Local Authority should not, and legally cannot, return the Notice as ‘Invalid’. If it is ‘Valid’ on the day it is served, it cannot become ‘Invalid’ just because works start on site. Detailed scrutiny of the BCA policy documents also upholds this principle.
So, the question is: if works do commence within this window, what should happen? The whole point of the Building Control process is to ensure that a Building Control Body is engaged and overseeing the correct execution of the Building Regulation. At some point before the Initial Notice is served, the Approved Inspector will have received an application, and it must be noted that their insurance starts as soon as they are appointed.

Suppose it was the case that concrete was poured prior to the Notice being ‘in force’. In that case, the Local Authority could rightfully take action under the Building Act because an item of construction was covered up before the Building Control Bodies without either an Initial Notice or an application to the local Authority being in force. We all accept that there are no legal requirements for the BCB to inspect works, so the enforcement from the Local Authority would be on the point of the principal.
In most cases of an Initial Notice being returned as Invalid because works have started, we are talking about excavations starting or possibly stripping out works occurring – in these instances, nothing is being covered up and The Building Regulations Schedule 1 doesn’t apply. What constituted commencement is another issue but an Initial Notice is still valid even if works start the minute it is served.