Self-builders write to Attorney General: BC(A)R SI.9

by bregs blog admin team

There seems to be numerous conflicting statements concerning the status of the self-builders under Building Control (Amendment) Regulation (SI.9 of 2014) by Minister Hogan and his Deaprtment at this point. In previous Dáil exchanges towards the end of 2013 Minister Hogan spelled out the requirement under SI.9 for a “competent builder” to undertake building works. Clearly no mention of owners undertaking the role and CIRI, the Construction Industry Federation (CIF) owned and operated private register of builders, is noted as de-facto compliance. Here on 18 Sep 2013 (Dáil written answers): Debate 18 September 2013

Quote from Minister Hogan: “(a) drawings and particulars used for the purposes of construction to be submitted to the local building control authority;(b) design to be undertaken and certified by competent professionals prior to works commencing;(c) owners to formally assign a competent builder to undertake and certify the works;(d) owners to formally assign a registered professional (to be known as the ‘Assigned Certifier’) ...”

In more recent exchanges from the Minister and correspondence from his Department, the view of self-builders appears to be quite different. Link here to recent correspondence from DOELG to the representative body of self-builders (IAOSB): Response from DECLG on SI.9-_13th_march_2014.

This apparent about-turn on the status of self-builders one must assume is as a result of the very high-profile nationwide campaign by self-builders (IAOSB) lobbying local representatives and TD’s with self-builder’s concerns. (Link: People of Ireland, stand up for your rights). This adversely affected group have escalated their complaints about the restrictive nature of the Construction Industry Federation (CIF) privately owned and run register of contractors to the European Ombudsman also (Link: IAOSB complaint to European Ombudsman)

Independent legal advice obtained by the IAOSB has confirmed that self-building is no longer possible after 1st March 2014. This view is shared both by two key stakeholder in the formation of SI.9, the representative body for architects (RIAI) and the CIF. The representative body for Engineers the ACEI also have had this confirmed at a CPD event in January 2014. In response to the latest contradictory statement by the Department the IAOSB has written to the Attorney General for definitive guidance on the status of self-builders under BC(A)R SI.9. (Link to attorney general letter here: IAOSB Letter_to_attorney_general).

Text of Attorney General letter to follow (from IAOSB website):

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Letter to Attorney General, Máire Whelan SC from Iaosb regarding S.I.9   18th March 2014

Dear Ms, Whelan,

This Statutory Instrument, signed into law by the Minister for the Environment, Community and Local Government, took effect from 1 March 2014. The law was drafted in response to certain well-publicised failures in the speculative residential construction sector but affects almost all types of building project. It requires the building owner to make a number of appointments or assignments (“Design Certifier”, “Builder” and “Assigned Certifier”) in advance of construction being commenced and to notify the local building control authority of these. These people, in turn, must certify compliance with the building regulations of the design and the completed works before the works or building may be opened or occupied.

The Irish Association of Self Builders has about 2,000 members. We are primarily private citizens who have built, are building or aspire to building our own homes, usually on land belonging to our families. About 2,800 such homes were completed in 2013, the largest single type of dwelling built in the State in 2013. The Statutory Instrument impacts on such projects.

The way most our Members build their homes in an affordable manner is to retain a qualified professional to prepare a design, and for the “self-builder” to then procure its construction by a combination of their family’s own direct labour, by contracting with specialist tradesmen such as electricians and plumbers, and above all by managing the building works directly themselves.

The Association has expressed concern, both privately to the Minister of the Environment, Community and Local Government and to his Department and also publicly, that the effect of the regulations is to require us to retain and pay a “competent building company” to manage our projects. It is generally agreed that for us to do so will add an average 10% to the construction cost.

This is a very significant cost indeed. €20,000 as an average extra cost will have to be added to the borrowing requirement for our members and will result in many new home projects being delayed or scrapped.

For your convenience, I attach copy of the “Notice of Assignment of Builder” and of the “Undertaking by Builder” which under article 9 the owner of the project must serve on the building control authority when it commences on site.

I also attach copy of the “Certificate of Compliance on Completion” referred to at article 20F of the Instrument which must be lodged with (and validated by) the building control authority before the building or works may be opened or occupied.

You will note that the Undertaking and Certificate of Compliance on Completion are “to be signed by a Principal or Director of a Building Company only”.

Through his Department, the Minister has responded to us to the effect that (a) it was never his intention that the regulations would hinder or prevent “self-builders” from continuing to manage our own projects and (b) that the regulations do not, in fact, so hinder. He has assured the Association that self-builders can indeed legitimately sign the undertakings and “Certificate of Completion” which the regulations require.

I attach in this regard, copy of (a) the “Information Note issued by the Department of the Environment on 26 February 2014 on Building Control (Amendment) Regulations 2014 (SI No. 9 of 2014) and the Self-Build Sector” and (b) a letter which the Department sent to the Association on 13 March 2014.

The Association’s members await our advice as to the implications of the new regulations, for their plans for their families’ homes. If we say to them that the Statutory Instrument requires them to assign a competent building company to undertake the construction of their homes and to sign the required Undertaking and “Certificate of Completion”, this will result at best in their incurring significant extra costs on their projects or at worst in the cancellation of many projects. On the other hand, if we say to them that the Minister for the Environment has advised us that they may themselves act as “builder” and sign the various certificates, this might make “all well”.

If, however, the Minister is found subsequently to be mistaken in his reassurances to us, the consequences are potentially most serious for our Members individually and for the Association upon whose advice our members may legitimately rely. The foreseeable consequences include (a) rejection by building control authorities of the signed “Certificate on Completion” as invalid with our Members’ new homes not being open able or occupiable under law; (b) refusal by banks or other funding agencies of loans to our Members or, worse, demands for the repayment of loans advanced on foot of undertakings which were not fulfilled, loans which it will not be possible to repay upon demand as the money will have been committed to tradesmen and others; and (c) prosecutions of our Members for breach of statutory duty.

In the above context, the Association requests that you ask your officials to examine the text of the Statutory Instrument and to advise us, and if you see fit to advise the Minister also, as to whether in your opinion our members may indeed legitimately appoint themselves as “Builder” under these regulations and sign the various Undertakings and Certificates.

I look forward to hearing from you.

Sincerely yours

Shane McCloud
Irish Association of Self-Builders
www.iaosb.com

Letter to Attorney General from Iaosb regarding S.I.9  Word.Doc

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