BRegs Blog

A blog to debate the Building Control (Amendment) Regulations (BCAR): The BRegs Blog presents an opportunity for free expression of opinion on BCAR and their implementation. The blog is not representative of any professional body or organisation. Each post represents the personal opinion of that contributor and does not purport to represent the views of all contributors.

Month: December, 2013

The Australian Building Control System #bregs #JohnOSullivan

by bregs blog admin team

000PHoto

The Australian building control system is like many things Australian similar but different. The National Construction Code (formerly the building code of Australia) are the regulations across all states with some variations for different states. There is only one class of professional who can certify, these are Building Surveyors, they can be public or private sector and in some states they issue the building permits too. Building Surveyors must be independent, they cannot be the designer, engineer, and owner or otherwise financially involved. There are different levels of registration across all states in Western Australia (WA) where the author is currently based there is Level 1 – Unlimited, Level 2 – Two Story up to 2000m² and Technician – Two Story up to 500m². Registration is controlled by the Building Commission and is subject to having certain qualifications and experience.

The only international qualification recognised for registration as a Building Surveyor in Australia is a Chartered RICS in Building Control Surveying.

WA was the last state to adopt private building surveying in May 2012. In the WA system the final plans are certified for compliance with the BCA by a registered building surveyor and then submitted to the Local Council for a building permit to be issued. The application must contain the name of the builder who where the works are valued at over $20,000 must be a registered builder. A home owner may apply to the Building Commission to be an owner builder so self building is permitted when approved.

All residential building projects over $20,000 must have mandatory Builders Warranty insurance, owner builders must provide it if they sell within seven years of completion.

There is no mandatory inspection required by permit authorities or by building surveyors during construction in WA so generally it is not carried out.

On completion of a building the builder must serve a notice of completion stating that they have completed the works in accordance with the approved plans, etc.

For non domestic buildings an occupancy permit is required prior to occupation which must be accompanied by a Certificate of Construction Compliance for new buildings or a Certificate of Building Compliance for existing buildings. These must be signed by a registered Building Surveyor.

The system does work reasonably well even though the lack of mandatory inspection will invariably lead to abuse or failure of the system and based on some poor experiences in the eastern states may well be reviewed.

 

About the Author

John O’Sullivan is a Chartered Architectural Technologist MCIAT who qualified in 1993 with a BSc in Architectural Technology and worked in Ireland until August 2012 including 12 years running a small practice in the west of Ireland. Following a WA government jobs expo he was recruited to the position of Senior Building Surveyor in the City of Kalgoorlie Boulder in Western Australia. He is currently undergoing the RICS professional Experience route to MRICS to allow registration as a Level 1 Building Surveyor in WA. Under the SI80 he will not be allowed certify in his own right in Ireland as an Architectural Technologist without going through a conversion process

Lessons of Priory Hall were not learned in the creation of new Building Control Regulations #bregs #GrahamUsher

by bregs blog admin team

Graham Usher in his apartment in Priory Hall August 1 2013

As a former resident of Priory Hall, I read the proposed changes to the Draft Building Control (Amendment) Regulations 2012 with interest.

After reading, I cannot help but feel Environment and Local Government Minister Phil Hogan and his department have failed utterly to learn the lessons of Priory Hall.
The proposed amendments still place the focus for local authorities almost entirely on the acceptance and filing of certificates of compliance.

Under the 1990 Act, local authorities have the power to inspect works in progress. They clearly have not availed of this power. Legislation should be changed to turn that power into a statutory duty. In the past, local authorities have claimed that they did not have the resources to carry out inspections on new developments, despite the large levies they received on the sales of these homes.A robust public/private inspection regime should be implemented to ensure that another Priory Hall cannot be built in the future.

When Dublin City Council, as the building control authority, finally decided to inspect Priory Hall, the cost of hiring an outside contractor to complete the inspection came to €39,829, or €213 per apartment. This is a small fraction of the levies they received from the sale of each apartment.

Should the decision be made not to inspect all developments a targeted approach to inspections should be taken rather than the current, apparently random, approach that exists. The decision to carry out an inspection should take into account the past history of the builder and any other available information that may indicate potential problems with the development.

This would necessitate information-sharing between the 37 local authorities and any other state bodies involved in the construction process, possibly through a centralised database providing details of any ongoing or historic problems local authorities or relevant state bodies have had with builders.

Such a system would have indicated to Dublin City Council that the builder of Priory Hall had, in the past, had compliance issues in other developments, that the HSA in 2006 sought a High Court order to close the Priory Hall development due to safety concerns and that, in the same year, a Department of Environment inspector had highlighted building control defects at Priory Hall to the builder.

Incredibly, it would appear there will still be no inspections by the local authorities, as the relevant fire safety authority, to ensure compliance with fire safety standards. Given the fact that the chief fire officer for Dublin City Council has stated that a fire could spread throughout the entire Priory Hall development within minutes, due to an absence of fire protection, it is a huge concern that the minister is not implementing a more proactive approach to ensuring fire safety.

Under Article 10 of the proposed changes, it states that local authorities will be required to enter details of the certificates into a register. There is no mention of the local authority being required to carry out any due diligence on these certificates. At a minimum they should verify that the person carrying out the inspections is in fact suitably qualified and properly indemnified. Finally, the need for a developer to lodge a bond with the local authority should be mandatory.

In my opinion the aim of the proposed amendments is to ensure that the State succeeds in absolving itself of having to take any responsibility for potentially dangerous defects to peoples homes despite the funds they have and will continue to receive through large levies & stamp duty.

Graham Usher
Apt 3, Block 9
Priory Hall
Dublin 13

 

This story appeared in the printed version of the Irish Examiner Monday, May 28, 2012

Note from Bregs blog admin team: Graham wrote this submission in response to the 2012 draft of S.I.80. While there have been amendments to the original draft, the comments above stand true for the current draft.

What do the charity sector and the construction industry have in common? #bregs #MaoilíosaMelReynolds

by bregs blog admin team

images

 

There has been a  lot of talk recently about the need for regulation in the charity sector. One radio pundit was astonished that the charity industry with an estimated €1.8bn annual value is self-regulated, with no independent government oversight. Imagine an industry sector four times this size which also is self-regulated. This is the construction industry.

According to the Society of Chartered Surveyors Ireland “The Irish Construction Industry in 2012″(p2):

“…Having peaked at close to €39 billion or almost 25% of GNP in 2006, the ensuing painful adjustment has led to the value of output falling to €8.7 billion in 2011, or 7% of GNP. The crisis in construction will see the value of output decline again this year to an estimated €7.5 billion, or by 14.5% in volume terms. Thus construction will record its fifth year in a row of a contraction in output, reaching just 6% of GNP…”

So in 2013 construction output will be down to €7.5bn from a high in 2006 of €39bn. The construction industry has been self-regulated for the past 20 years with no comprehensive independent local authority audit or inspection system in place. We are facing in to new legislation in March 2014 that, in the face of recent high-profile building failures, reinforces and consolidates the current dysfunctional system of self-regulation. Remarkably there is no provision to increase the number of properly qualified building control inspectors to create a comprehensive 100% inspection rate for new buildings. In 2007 we had less than 70 inspectors for the entire country. Most other industry sectors of this magnitude have independent government regulation.

A number of the submissions made by major consumer groups to the department in 2012 when SI80 was being formulated made specific reference to the requirement for comprehensive, independent local authority building inspections. Astonishingly these requests have been disregarded.

Effective modern regulation will drive efficiency and is far more cost-effective than more taxpayer bailouts for families who will bear the brunt of future building failures.

This is the time to aim to introduce a proper building control inspectorate for buildings with 100% inspection rates- now when the industry is at a low output and a new system can be bedded in. To have such huge part of our economy with no independent government oversight is simply not acceptable: it would not be tolerated in any other sector.

link:  http://www.scsi.ie/constr2012

The above opinion piece was submitted on December 17th 2013 by Maoilíosa Mel Reynolds BArch (NUI) DipPM (TCD) MUBCons (UCD) MRIAI RIBA

Thoughts on a way forward #bregs #DeirdreLennon

by bregs blog admin team

D Lennon005

Building Control (Amendment) Regulations 2013 SI 80  –

The Minister has confirmed that he wishes to “strengthen the current arrangements in place for the control of building activities “ as part of the 2013 amendments to the 1990 Building Control Act

Indeed,BC(A)R’s SI 80 has been carefully crafted to “require the private sector to provide an active part in achieving regulatory oversight.” This is to be achieved through professionally endorsed notices and certifications along with Contractor endorsed undertakings, each to be submitted to the Building Control Authority at distinct times between commencement and completion of construction projects.

The drafting of this legislation has been in process since 2011 and its Statutory Instrument SI 80 is on the cusp of enactment. No transition period has been allowed. No meaningful engagement or dialogue took place between government and the general public. Engagement with our representatives and other stakeholders took place behind closed doors. This legislation directly affects the practice of architecture and we are therefore all stakeholders in this important matter.

Given the title of this amendment and proclaimed political commitment we may be forgiven for believing that the proposed amendment promises change. Not so.

The devil is in the detail. The role of the Local Authority as Building Control Authority under the Act has changed in one small way. It has to conduct a validation process, an administration function of receipting and recording submissions. The non mandatory Code of Practice states that the Authority will then undertake a risk assessment but there are no details offered as to how or what this means.

In fact, Building Control Authorities intend to rely on the 1990 Building Control Act to continue a practice of zero obligation to carrying out technical assessments and to proceed with current commitment to an undefined number of building inspections –no change there either.

We are being asked to believe that this legislation will create more work for architects, that our professional liability will not increase, that the Building Control Authority will do better and best of all that Contractor registration will come.

If the Minister is really serious about strengthening the Building Control System he can task the Building Control authorities to carry out independent inspection and review protocols similar to that operated in the UK. This system has been tried and tested and following review in 2012 has been confirmed to be the most cost effective solution for protecting the quality of the built environment. We would welcome it.

Deirdre Lennon MRIAI

Member of BReg Forum and candidate for RIAI Council Election 2014

15th December 2013

Thoughts on a way forward #bregs #ClaireMcManus

by bregs blog admin team

Claire McManus_MRIAI

Ireland should look to international experiences & best practice, and devise an effective system of Building Control that is suited to our culture, practices and legal system. A robust system must address eight major policy areas as set out by the World Bank:

Eight Critical Elements of a Building Regulatory Framework

PICTURE

The following analysis of international experience is drawn from the Wold Bank Group (2013), IRCC (2010) and the NCA (2012). The World Bank document was published this year as a roadmap on how to reform building regulations in order to drive cost-efficient robust systems, which have significant benefits to the entire economy.

The Irish system of Building Control is unique internationally. The Department of the Environment do not publish their statistics or their records of inspections, but their target is only one site visit to 12-15% of buildings. By way of comparison, there is a 100% inspection of all dwellings in the USA and in much of Europe.

AUSTRIA – First Build a Solid Foundation, Then Streamline the System

Austria’s building control system focuses on who can build rather than on the building: in other words, the builder rather than the building.

This system presents risks in that heavy reliance on practitioner licensing or “barriers to entry” can create impediments to progress or price increases during construction booms if not enough licensed practitioners are available to carry out the work. Systems that rely heavily on either professional designers and contractors or professional inspectors require strategies to deal with supply issues.

In Austria a strong foundation of transparency and professionalism has improved the regulatory system. Increased transparency improves developer and builder engagement, thereby increasing efficiency. Increased transparency also reduces public-sector discretion and the potential for corruption.

 

FRANCE – Private Liability and Insurance as the Main Drivers to Promote Compliance with Building Standards

Private Liability and Insurance as the Main Drivers to Promote Compliance with Building Standards The French system is one of only a few—if not the only—building regulatory systems driven by insurance. The United Kingdom system has some elements similar to those of the French system, in that private-sector third-party review bodies (approved inspectors) must be linked to a warranty provider for home inspections, but this requirement does not apply to non-residential building.

Independent and efficient courts have also been important elements in France’s reforms. The court system has not only regularly ruled to enforce the obligations of the constructors and insurance companies; it has actually expanded them over time through an extensive interpretation of the “fit for intended use” clause of the Civil Code. Emphasizing the liability of private parties may be a more powerful tool than state inspections to ensure compliance with building standards. Reform in France shows that leveraging the power of the market may be a stronger incentive than the fear of fines or sanctions.

 

NEW ZEALAND – A Focus on Building Control, Accountability, and Consumer Protection

Many countries have established service standards for local building authorities requiring them to have qualified persons on staff who can review building-permit applications within specified time frames. In many countries, however, medium- and small-sized municipalities lack technical capacity or resources to provide the level of service expected or, in some cases, required by legislation. New Zealand’s reform targeted improvements in the transition process for the accreditation of building consent authorities (BCAs). The BCAs were not ready to perform this new task, and their lack of preparation may have led to delays in many jurisdictions.

After improving the municipal service standard and enforcement, New Zealand turned to accountability and documentation and to improving the capacity of designers and contractors to comply with the code. The New Zealand Government has recognized that, while third-party enforcement is important, enhancing the capacity of designers and contractors and empowering the consumer through better information can have an even bigger impact on streamlining of and compliance with building control processes.

NORWAY – Trust But Verify—Norway’s Experiment with Self-Certification

In an effort to streamline its building-permit process while leaving code compliance to the professionals, Norway decided to embark on a bold and unique experiment by eliminating mandatory third-party inspections and relying on self-certification by licensed practitioners. Self-confirmation refers to a construction-permit system placing complete reliance on the project designer to comply with building-code requirements.

The self-certification experiment led to a more streamlined system but also to increases in building defects and reduced building safety. Norway decided to keep the system of self-certification, but it brought back mandatory third-party review for certain crucial building components. The third-party review by certified private inspectors focuses on certain structural, fire safety, and building envelope components.

The lesson drawn from Norway’s experience was that despite self-certification by licensed practitioners and oversight by municipalities, significant increases occurred in building defects and safety problems in the absence of third-party review of crucial building elements.

SINGAPORE Combining IT Solutions with Public-Private Collaboration to Achieve More Efficient Building Approvals

Electronic permitting systems can greatly contribute to efficiency for both the industry and regulators. Following IT-based reforms in Singapore, both developers and regulators have seen significant efficiency improvements.

The Building Control Department (now the Building and Construction Authority) was the clear leader of this initiative, and its leadership and the engagement of all stakeholders from the beginning were key elements of reform success. Subsidies to update IT capabilities and help desks and several seminars and workshops on technical assistance were fundamental in bringing building professionals up to speed on the system. After providing all this support, the government made online submission of processes and plans mandatory: no paper documents were permitted. This was necessary to induce the private sector to fully utilize the new system and to achieve real efficiency gains by avoiding a parallel paper system.

One of the most valuable lessons from Singapore’s experience is the importance of reorganizing the approval process before adopting IT solutions. Authorities met with the private sector and with the technical staff of each of the agencies to look for synergies and to create common standards to improve communications and information-sharing protocols among them. Only after this effort was the approval process automated.

UNITED KINGDOM – Public-Private Competition in Building Control

In an effort to provide builders with more choice and to stimulate competition, the United Kingdom has gradually opened up more opportunities for private-sector inspection agencies, known as approved inspectors. To compete with the private inspection agencies, some local building authorities have entered into partnerships with other local authorities, pooling their technical resources.

The introduction of the private-inspection option and, in particular, the expansion of private inspection in 2007, have resulted in more customer-focused, faster service. Competition among private-sector building control firms has stimulated innovations in public- and private-sector corporate organizations. In the private building control sector, competition has led to the coordination of building control and warranty inspections by firms offering both services. In addition, some corporations offering building control also provide expert design advice on matters such as fire service.

The U.K. experience also shows how difficult, perhaps impossible, it can be to establish a level playing field between public- and private-sector building control bodies. The two building control and inspection systems never really compete on equal footing.

VICTORIA, AUSTRALIA – Competitive Building Control—Clarifying Roles, Ensuring Performance

Much like the United Kingdom, Victoria decided to give builders a private-inspector option. To implement this option, Victoria’s reforms included mandatory practitioner certification of designers, contractors, and public- and private-sector inspectors.

Lack of effective government monitoring of private surveyors, however, has left the system open to the criticism that it fails to protect the public by ensuring safety, competence, and compliance with the Building Act. Local government councils currently have no systematic review process for permits lodged by private building surveyors. Many local governments are unsure of their role in dealing with private surveyors, sometimes resulting in building works that do not meet basic standards. Consequently, the system needs further clarity on the role of local governments in dealing with private certifiers.

A key lesson to be drawn from Victoria’s experience is that greater reliance on private-sector inspections and on private practitioners’ compliance with regulations must also involve greater clarity regarding roles and responsibilities and additional performance auditing.

Sources:

Performance Based Building Regulatory Systems, IRCC 2010

Public Consultation – Draft Building Control (Amendment) Regulations, NCA 2012

Good Practices for Construction Regulation and Enforcement Reform, The World Bank 2013

Claire McManus MRIAI is an architect in private practice in Dublin & Tipperary

New or same old building regulations?

by bregs blog admin team

Sir, – Minister for the Environment Phil Hogan TD (Opinion, December 11th) explains that he “inherited an appalling mess of shoddily built homes like Priory Hall”. He says new building regulations “provide the consumer with better protection”, but that “a campaign led by several past presidents of the Royal Institute of Architects of Ireland (RIAI) has recently sought to postpone and prevent implementation of the new regulations”. He does not explain why we have so sought.

At a meeting last October, the largest-ever gathering of architects in Ireland resolved (by 550 votes to eight) that the new law “will not achieve the objective for which it has been introduced, and that the consumer will be no better protected than was the case in the recent past because of shortcomings in the said regulations”.

Why will the consumer be no better off under these new regulations?

The reason is to be found in the public statements last year of Graham Usher, spokesman for the Priory Hall residents, who wrote: “The proposed amendments still place the focus for local authorities almost entirely on the acceptance and filing of certificates of compliance. Under the 1990 Act, local authorities have the power to inspect works in progress. They clearly have not availed of this power. Legislation should be changed to turn that power into a statutory duty.”

Several consumer protection bodies have explained why independent inspections under local authority control are vital for proper consumer protection. The Minister’s regulations do not provide this; instead, they provide the “ultimate in self-certification”. Furthermore, the developer should pay for mandatory insurance for home buyers: the regulations do not require this.

These regulations are a huge missed opportunity. The Minister and his Department should consult with all relevant stakeholders, not just the construction industry as hitherto, and rethink his approach.

There is no time to waste. The Irish people need better building regulations now, not after the next round of building disasters. – Yours, etc,

Royal Institute of Architects of Ireland Past Presidents:

PADRAIG MURRAY (1974-1975), MICHAEL COLLINS (1986-1987), PETER HANNA (1992-1993), JOAN O’CONNOR (1994-1995), EOIN O COFAIGH (1998-1999), ARTHUR HICKEY (2000-2001), SEAN O LAOIRE (2008-2009)

As published in the Irish Times today, 13/12/13 

Another way forward: The cost of Independent Local Authority Building Control Inspections #bregs #MaoilíosaMelReynolds

by bregs blog admin team

mel's image 2013

We should look at the real costs for a properly resourced local Authority building control inspectorate. For the full range of building types it is sensible to adopt a sliding scale costs based on the building type, method of procurement, whether an architect would be providing a full service and whether a contractor is registered or not. The procurement methods would be declared by the client on commencement and trigger a sliding scale of fees. For this exercise we are assuming a salary cost for a building control inspector at €48,000 per annum. Appointment of an architect to provide full service still is best way to ensure building quality and compliance. Fees to be borne by developer/client and process to be self-funding at zero cost to taxpayer.

Where a full service appointment in in place for a once-off dwelling we would assume the lowest control inspection level is required: 3 inspections at cost €375.

For a multi-unit residential development with a main contractor and design team giving partial service this development would have minimum of say 6 inspections at €750 each per unit. This rises to say 9 inspections for self builder at cost €1125.

Other categories would be on sliding scale with provision for fines caused by non compliant work requiring additional inspections and admin (warnings issue etc)

In this system most existing categories of procurement accommodated: from self-building once-off housing to “for-sale” multi-unit developments where a full architectural service is not provided. The variable is the cost of additional inspections based on risk analysis etc.

Cost would be the similar whether developer uses Local Authority building control directly or elects to use a licensed operator (like UK model).

The costs above are within the established range of costs for inspections in Northern Ireland (£300 per house) and scotland (£700).

A target of 100% Building Control Authority (BCA) inspections should be in place at the commencement of any new certification process. Now is the time to get a proper system up and running when construction output is depressed. BCA inspections and fees could be a valuable source of income for local authorities given loss of income from the impending roll-out of Irish Water in January 2014.

The Department has stated a mid-range additional cost per dwelling of €2000 for S.I.80 (RIA 2012). Why continue a defective system of self-certification at an increased cost when properly resourced independent building control inspections could cost as little as €375 for the same dwelling, less than 1/4 the cost of S.I.80?

Maoilíosa Mel Reynolds BArch (NUI) DipPM (TCD) MUBCons (UCD) MRIAI RIBA

Thoughts on a way forward #bregs #OrlaHegarty

by bregs blog admin team

DSC_7162bw

‘Certification and Insurance Plan’: An alternative approach to Inspection & Liability

 The reason that design professionals are concerned about responsibility for certification is that there is a tendency to think that certifying compliance with building regulations is ‘all things, for all time’, effectively a warranty on the entire building.

The public may think that architects are responsible for all matters on site and can control a perfect outcome. This is not the case- the standard expected of a professional architect is similar to that of a doctor or accountant- to exercise due, skill and care and to provide a professional service, not to guarantee the performance of others.

In my view, what is required is a Certification & Insurance Plan, not an Inspection Plan. The inspections, timing of inspections and record-keeping are matters for the contractual parties involved and are better dealt with through procurement arrangements and not as another piece of statutory administration.

The following is a proposal for certification and insurance arrangements. The key points are that Part C- Site Preparation and Part D- Materials and Workmanship are not relevant or appropriate to certification at Design Stage and must be the responsibility of the builder at Completion Stage. The Architect and Engineer do not prepare the site, do not order the materials and cannot control workmanship on site.

Untitled-1

In summary:

  • Design certificates are already issued by the Building Control Authority for Part B-Fire Safety and Part M- Access and Use. For simplicity, Part K- Stairways, Ladders, Ramps and Guards might easily be folded into Part M, due to the obvious overlaps; this would also eliminate some of the internal contradictions between the two standards.
  • Design certificates are currently issued by the Structural Engineer for Part A- Structure.
  • Design certificates could easily be added for Building Control Authority approval of BER calculations to demonstrate compliance with Part L- Conservation of Fuel and Energy. This might simply include elemental calculations for wall, roof, windows etc. on the basis of the Planning Permission drawings, without full specifications. The approvals could be sub-contracted from the Building Control Authorities out to the trained BER assessors.
  • Part E-Sound compliance is measurable at completion and could be covered with a design certificate from the architect.
  • Parts F- Ventilation, G- Hygiene, H- Waste Water & Drainage and Part J- Heat Producing Appliances could be codified and project specific to arrange the design compliance between consultants and installers. For example, design of the ventilation might be the architect for a house or a Services Engineer for a hospital, the number of sanitary appliances might be the responsibility of the architect but the drainage might be the engineer, etc.
  • Part C- Site Preparation and Moisture and Part D- Materials and Workmanship. It could be argued that these are not relevant to Design Certificates as they are ‘site’ matters and cannot be designed. In any case, workmanship, materials and site preparation are outside the control of the design team, which is why these are the areas of greatest concern for future liability.  If Parts C and D are excluded from the Design Certificate and become the responsibility of the contractor at completion, this would significantly improve practices on the site.

 

Following from this the LDI (Latent Defects Insurance) could similarly be codified to the certification plan for the various parts of the regulations. The parts that are measurable and that can be inspected (width of stairs, size of window, sound transmission, air-tightness etc) are easily checked at completion. The certification of the other parts are broken down further, depending on the project and the responsibilities allocated.

It also means that Part C and Part D might be covered by LDI without subrogation, as they are outside the remit of the designers PI. This would mean no recourse to the designers PI for defective materials or workmanship. In practice, this might mean that there is subrogation to the engineer for Part A, but not to the architect for Part M (unless the architect made a mistake in certifying that the Completion Certificate conformed with the approved Design Certificate). There would be no recourse to the architect for pyrites, for example, as checking every stone delivery is not the designers responsibility.

Breaking down the certification also gives clarity to the insurers to assess the risk. In order to determine the risk on a policy this table can be used to measure risk against previous claims. More importantly, future policies can factor in the contractors performance, which is a real incentive to improve site practices as it would drive down insurance costs.

Omitting Part C and Part D from the Design Certificate would also bring the Regulations in line with the Construction Products Regulations, which now require all materials to be in compliance with the EU standards. The architect/ engineer can specify materials but has no control over ordering and deliveries. By making ‘materials and workmanship’ the responsibility of the contractor there is a disincentive to cutting corners and a requirement on the contractor to maintain records. (This alone would have significantly helped to reduce the scale of the pyrite problem).

This system would require a ‘Certification  & Insurance Plan’ at the outset rather than an ‘Inspection Plan’. The advantage of a Certification Plan is that it would overcome all of the difficulties with non-traditional methods of procurement and it would allow insurers an involvement at the early stage of a project, when risks can more easily be mitigated.

Orla Hegarty B.Arch. MRIAI RIBA is Course Director for the Professional Diploma (Architecture) at the School of Architecture, UCD

Thoughts on a way forward #bregs #JoanO’Connor

by bregs blog admin team

photo (6)

The Obligations of the State

The involvement of the State in the protection of the interests of its citizens is a legitimate expectation and is an obligation of Government in a civil society. The State cannot abdicate its responsibilities to purchasers and users of property and there are means by which Government could control design and construction quality analogous to the operations of the Revenue Commissioners and their use of licensed auditors as a means of discharging the State’s functions in the control and oversight of business.

What is needed is a State-sponsored, self-funding independent inspection system which is credible and authoritative.

Consumer Needs

The consumer – particularly the house owner – must have easy access to a speedy means of resolving significant defects emerging in recently-completed property [particularly the home] at minimum, collateral costs. The current, Courts-based solution is slow, expensive and adversarial, even if a “mark” is found in the end.

The consumer – e.g. house purchaser – should have access to a guarantee, backed by insurance, to which he has immediate access to deal with legitimate complaints regarding defects. This guarantee – sometimes called latent defects insurance – can be provided, at minimal additional cost which would be carried by the Developer.

Such a guarantee would be mandatory and form part of the chain of conveyance and mortgage funding. LDI brings with it the following advantages in the campaign for better building:

  • Better builders will get insurance cheaper, based on track record, and thus will be able to sell more competitively.
  • Bad builders may be unable to get such insurance, ruling them out of the market.
  • The insurers carry out their own design reviews and site inspections, appropriate to the type of project and the risk profile of the building : another, experienced set of eyes looking at the project.

Increased Complexity of Building in Ireland

A multiplicity of approvals and certificates now required to build and there are numerous appointments to made for all building endeavours – whereas the obligations of the main parties to a building contract with regard to building standards are simple – to design and to build in compliance with the Building Regulations – and this encompasses everything – fire, thermal performance, disability access, structural stability, etc.

Appointments include architect, engineers, QS – PSDS, PSCS, Design Certifier, Assigned Certifier [and statutory notifications of such appointments where required]. Approvals, plans, certificates and consents will now include –

Planning Permission [separate regime].

  • Fire Safety Certificate : €2.90 per sq.m., €12,500 max.
  • Commencement Notice
  • 7-Day Notice : €5.80 per sq.m., €25,000 max.
  • Regularisation FSC : €11.60 per sq.m., €50,000 max.
  • Disability Access Certificate [excluding houses] – €800 plus fees, no time limit for issue.
  • Notice of Assigned Certifier [by Building Owner]
  • Undertaking by Assigned Certifier
  • Notice of Assignment of Builder [by Building Owner]
  • Undertaking by Builder
  • Design Certificate – submission of details, full drawings and specifications to BCA
  • Health and Safety Plan
  • Safety File
  • Preliminary Inspection Plan
  • Inspection Plan
  • Completion Certificate by Assigned Certifier and Builder [and acceptance thereof by the Building Control Authority – “BCA”].

Registration of Builders

Notices issued by Building Employer states that the Owner is satisfied that the person or firm appointed is/are competent to undertake the works …. How is a consumer building a house, or indeed a small shop-owner carrying out some alterations – supposed to know whether a builder is competent or not? The response might be that a check of the Builder’s Register should be adequate but such a register is not in place and will not be in place until 2015 at the earliest.

A voluntary register of builders is a nonsense. Registration with teeth needs statutory backing and would take at least two years to develop. It necessitates the establishment of a registration board, standards and codes of practice, grievance procedures, codes of conduct and the like so that there is fair procedure in the event of a challenge to a builder’s registration.

Registration as a system of recognition or public endorsement is more suited to the individual trader or practitioner – or a single, small firm whose entire activities can readily be encompassed and/or understood. It is less suitable for large, multi-faceted contracting firms with multiple employees of wide-ranging skill levels.

Licensing of contractors could be more appropriate, with builders ranked by competence for projects of varying sizes and complexities. A licence would last for –say – three years and might also be used to exempt firms from pre-qualification procedures or to, de facto, pre-qualify them. There would, obviously, have to be control and complaints procedures of some kind.

The Underlying Purpose of Building Regulations

The primary purpose of Building Regulations is to provide for the health, safety and welfare of people in and around buildings.

Some Impacts of S.I.80

S.I.80 is primarily intended to remedy problems in the speculative residential sector but applies to all buildings and material alterations or extensions to existing buildings, including office and factory fit-outs.

Delays to projects planned to start in early 2014, increased costs – already acknowledged by Government, and protracted procedures at completion and handover, often a critical time for new business or business processes.

Building and construction investment forecast to increase by 5% this year and 7.2% in 2014, subject to conditions – an end to a 6-year decline. But regulatory bottlenecks are cited as a risk – and this is the biggest, avoidable hurdle.

Risks to the Government’s capital programme, including schools recently announced.

Reliance on Professionals’ Insurance

P.I. insurance needs to be in place when damage occurs and/or a claim is made. It is no use if the Assigned Certifier has retired [or been let go] , if his PI has lapsed for reasons of cost or whatever.

The PI insurer will cast his eye around the multiple players in the building works and will sue them all on the basis of joint and several liability whereby one, insured actor with even a minimal liability for the damage can be made to carry all of the costs, even for culpable parties who are no longer in business – “the last man standing”. As architects carry PI insurance, they are often that last man [or woman].

A Way Forward?

Dare we look aim for a radical overhaul of the system to simplify the administrative aspects of building control to focus on essentials such as education, inspection and insurance?

Joan O’Connor, President of the Royal Institute of the Architects of Ireland 1994-1995

Graham Usher raises concerns about the New Building Regulations

by bregs blog admin team

download (1)

“The state has a massive responsibility in what happened to Priory Hall. The state passed this legislation, this self-certification, and they introduced a building regime which essentially allowed builders to build property to whatever standard they wanted. And Priory Hall shows there is no protection to the homeowner”

“It is a lesson that doesn’t seem to have been learned on this. You can have the best regulations in the world, you can have the best laws, but there’s no enforcement Even under Minister Hogan’s new legislation, which strikes me as a bit of a half measure, there is no onus on local authorities to carry out any inspections whatsoever. The state is still abdicating their responsibility. In other countries you have local authorities going carrying out inspections at various stages of construction and you don’t have the sort of problems we have in Ireland”

Graham Usher speaking on Marian Finucane 13th October 2013:

http://www.rte.ie/radio/utils/radioplayer/rteradioweb.html#!rii=9%3A20453821%3A0%3A%3A

The regulations ignore key recommendations of the Pyrite Panel

by bregs blog admin team

000image

Photograph: Frank Miller/The Irish Times

The Pyrite Panel completed its report in June 2012 to do with arrangements for repairs for up to 12,000 homes. Several key recommendations address Building Control and how to prevent the future devastation to homeowners and families. These recommendations have been ignored and are excluded from S.I.80. This is remarkable given the recent announcement by the minister of a proposed €50 million top up to the agreed €10 million fund to provide redress for distressed homeowners. Why valuable insights of the Pyrite Panel have not been adopted in the face of harrowing experiences of pyrite homeowners and the massive taxpayer costs is wholly unacceptable.

“An indelible mark has been left on the lives of homeowners and families – and the past few years have been a nightmare for them.. from our experience of many reports submitted to Governments in the past, we have seen significant delays from the time the reports have been submitted to the time the recommendations are implemented, if indeed they are implemented.” The Pyrite Panel 2012

Pyrite Panel recommendation 18: Mandatory certification system

“The Panel recommends development of a mandatory certification system which should recognise the importance of inspections, product certifications and site supervision and takes proper account of the risk associated with design, materials and construction.

In addition, the Panel recommends that the system of independent inspections, carried out by the building control officers, should be strengthened to complement the mandatory certification process for buildings.”

The Panel describes these recommendations as complementary because it is not possible for one certifier with no powers of enforcement to ensure compliance on site.

Pyrite Panel recommendation 19: Registration of builders

“The Panel recommends that: a mandatory registration system should be established for builders with specific requirements for appropriate insurance cover (supported by regulation). Registration of builders should require demonstration of technical competence, financial capacity and adequate insurance cover.”

The new regulations do not include a Register of Builders and although the Minister has intentions of establishing a Register, possibly in 2015, this is not included in the programme for government.

Pyrite Panel recommendation 21: General Insurance issues

“The Panel recommends … (b) a requirement for project-related insurance whereby cover for each specific project is available and adequate and is related to the project only.”

Without the provision of insurance, there is no fund available to homeowners for removal or repair of defective materials. Their only source of redress is to take legal action against everyone involved in the hope that negligence can be proven. In some cases homeowners with pyrites in the foundations of their homes in 2006 are still waiting for a resolution.

Are we destined to blindly repeat the mistakes of the past? Promises to consider these recommendations are not enough.

Latest Revisions to Building Regulations “make matters worse” #bregs

by bregs blog admin team

To offer effective consumer protection, S.I.80 requires the professionals to have effective insurance. The problem is that if insurance is not available to the professionals, the consumer may be no better off legally than they have been in the past.  The latest revisions apparently being considered are intended to improve insurability, but legal opinion is emerging to the effect that these revisions may well make matters worse for the consumer seeking redress.

Inadequate Regulatory Impact Assessment for S.I.80

by bregs blog admin team

Audit-Checklist

To find out how one might effectively assess building control amendments we do not have to look far: the “Communities and Local Government: Proposed changes to the building control system – Consultation stage impact assessment” report was produced in the UK in 2012. You can read it here. The report comprehensively examines several options to revise and change the UK building control system. Their existing system, unlike ours, already has comprehensive local authority independent inspections with 80% backed by warranty.

The UK report included the Irish system as a option: light-touch, low-cost (to local authorities), self-certification, but discounted this early on due to cost to the consumer and to the wider industry. Making the system of building control simpler, leaner and more cost effective for society in general is clearly a motivating factor.

The UK is our closest model in terms of building standards, legislative system and environment. We are a fraction of the size of the UK, however our demographics are similar. One must wonder after reading this document, how the Department of the Environment, Communities & Local Government (DECLG) opted to continue with the most expensive form of building control for the industry, when a simple system of self-funded local authority independent inspections would improve building standards and save the industry tens of millions per year, while delivering a better standard of building generally and giving the consumer redress in the event of latent (hidden) defects?

Despite over 500 stakeholder submissions on S.I.80 received by the DECLG, no such study was carried out here. It appears that at no point in the consultation process or formation of S.I.80 have the impacts on SMEs, the industry and the consumer been considered in detail. The National Consumer Agency (NCA) estimates the extra cost to the Irish house building industry alone would be in the region of €30m- €90m per year (based on a sustainable level of 30,000 new dwelling units per year). The financial impact of S.I.80 on the wider industry is likely to be a multiple of this. With no comprehensive independent system of local authority building inspections, the effect of S.I.80 on building standards will not give the return for this extra cost to the industry, nor to the consumer. In their 2012 submission the Competition Authority express concern about “whether the additional costs imposed by the proposed regulations are in proportion to any benefit they might bring”

Worryingly, it would appear that the Department did not carry out a Regulatory Impact Assessment (RIA) of the March 2013 wording of S.I.80. A very brief RIA was completed in 2012 and the lack of a follow-up would suggest some of the very significant changes introduced by the Minister in the March 2013 draft have not been comprehensively examined. The RIA produced by the department is included as part of the following document “Strengthening the Building Control System – A Document to inform public consultation on Draft Building Control (Amendment) Regulations 2012“ . See document here

The Impact section (section 4) of the RIA is only six pages long and does not appear to be backed up with any research. For example, under the Section 4.6(i) Impact on National Competitiveness, the report makes the simple claim “There will be no negative impact on Ireland’s competitiveness”. The only costs noted is a notional cost per dwelling. Remarkably, the more significant insurance costs are excluded. This is an extraordinarily light assessment of a very significant amendment.

We do not need to look to the UK for examples of good impact assessment. The RIA of our own Construction Contracts Act 2013 (available here) and recent Health & Safety Legislation (available here) provide far more comprehensive analysis. Why has S.I.80 only had the most cursory impact assessment done on the 2012 draft and nothing since? Already three Senior Counsel legal opinions completed on the March 2013 draft of S.I.80 identified serious legal and practical issues associated with implementation, and all concurred that S.I.80 is unworkable in its current form. Given the wide-ranging effects on the construction industry, SMEs and the wider economy, it is remarkable that essential stress-testing has not been completed by the department.

Government Reports & Professional Opinion Ignored in S.I.80

by bregs blog admin team

As Minister Hogan prepares to sign off on the final wording of the Building Control (Amendment) Regulations, we take a look at some of the government commissioned reports and the professional opinion that were ignored in the design of S.I.80.

Government Commissioned Reports:

The National Consumer Agency (2012): “the NCA would point to the undesirability of a situation arising whereby one entity could design, build, inspect and certify a building while no inspection by a Building Control Authority takes place.. Should a consumer purchase a dwelling become aware of non-compliance with building regulations, and bring the issue to the notice of the relevant Building Control Authority, the legislation allows the consumer to be designated as the party responsible for bringing the dwelling into a state of compliance. Consideration should be given to providing means by which responsibility for bringing a building up to a compliant state rests with the party responsible for the non-compliance in the first place”

The Pyrite Panel 2012: “…the Panel recommends that the system of independent inspections, carried out by the building control officers, should be strengthened to complement the mandatory certification process for buildings.. Project-related insurance whereby cover for each specific project is available and adequate and is related to the project only”

The Competition Authority 2012: “These concerns are (a) whether the proposed regulations would, in fact, afford proper protection to citizens, (b) whether the additional costs imposed by the proposed regulations are in proportion to any benefit they might bring, and (c) whether placing the onus for compliance on certain individuals involved in the construction process, rather than on an independent arm of the State, is appropriate”

The National Disability Authority 2006: “The findings of the Rogerson (2005) research and DoEHLG’s own 2003 survey suggest the need for vigilant on-site inspection for compliance with accessibility requirements. The provision of Disability Access Certificates does not preclude the requirement for strengthened enforcement and on-site inspection of buildings against Part M”

Chief Fire Officers Association Conference 2012: “Better Paperwork does not mean Better or Safer buildings!”

The Sustainable Energy Authority of Ireland 2013: “It is believed that Latent Defects Insurance (LDI) would provide a cost-effective means of providing long-term protection for the recovery of the costs of repairing or replacing works following discovery of a latent defect. The insured party does not need to prove negligence and defects would be covered even were the contractor company is no longer in existence. Given the complexity involved in contractors individually providing their own policies, there would be a clear benefit in having a single LDI policy, where all works carried out under the Scheme were covered by a single provider, offering a single point of contact for claimants at an optimal cost.”

Professional & Registration Bodies:

The Royal Institute of the Architects of Ireland 2013: “Registration of builders must be part of the new system.. It is essential that the new monitoring and inspection systems provide for planned and random audits – on a risk analysis basis – of the documentation submitted to a local authority before building work actually commences, as well as inspection of buildings during construction… If such systems of inspection and analysis by building control authorities are not in place, then the danger remains of shoddy building practices continuing with consequent risks to the consumer”

Engineers Ireland 2012: “An appropriately strong and active inspection/auditing function being delivered by the appropriate state authorities is equally critically important in strengthening the existing Building Control System”

The Society of Chartered Surveyors Ireland 2013: “The regulations do not address the Building Control Authority’s side of the equation and it will also be incumbent on the Government to ensure that appropriate review of operations occurs in this respect.” Alan Isdell, Surveyors Journal 2013

Self-builders to be phased out under S.I.80

by bregs blog admin team

The forthcoming changes in the Building Regulations in March 2014 (S.I. No. 80 of 2013 BUILDING CONTROL (AMENDMENT) REGULATIONS 2013) have big repercussions for residential self-builders. Nearly 60% of houses constructed in Ireland are self-builds (source NaSBA) and self-building is a common form of construction for houses and extensions; this is especially the case in rural areas.

S.I. No. 80 requires that the owner gives notice to the Building Control authority of ‘…ASSIGNMENT OF BUILDER’:

Item 2. requires the owner to have ‘…assigned the following person as Builder of the works and I am satisfied that they are competent to undertake the works so assigned on my behalf.’

The owner therefore needs to assign a ‘competent person’ to undertake the building works; this raises several questions:

• Who decides whether a builder is a competent person?

• Currently there is no register of ‘competent persons’ that are considered competent to undertake building works; the Construction Industry Federation ‘is progressing the establishment of a Register of Builders in consultation with the Department of the Environment Community and Local Government (DoECLG).’ but this register will initially only be a voluntary register (transitioning at a later date to a statutory scheme).

• Logically a self-builder cannot assign himself unless he is a ‘competent person’.

Self-builders will be required under S.I.80, as clients, to employ a design certifier and assigned certifier (engineer/ architect/ building surveyor)- this is positive as it is unwise for a technically non-experienced person to undertake self-building without professional input. This should be welcomed as a positive development.

If a client is going to be the builder, currently that’s fine- self-builders can nominate themselves (as long as they consider themselves to be ‘competent’ and as builders are currently unregistered this seems to work well for self-builders. The only persons precluded from operating as contractors are Architects.

So, S.I.80 at the moment can only improve the quality of self-builds.

However when a formal register of builders is introduced in 2015 self-builders will need to meet the criteria to become registered, or will be precluded from this role. The criteria more than likely is a minimum of 3 years relevant building experience, tax affairs in order, relevant insurances in place etc.

So, in 12 months self-building will no longer be possible unless the self-builder  is already an established experienced contractor, with their own insurances and tax-clearance documents etc. People who want to undertake works themselves are no longer able to do so. One unintended consequence of this is that rural landowners with some building experience who are capable of managing sub-contractors will no longer be able to inhabit this role- they will be forced down the more expensive route of appointing a main contractor to domestic or other projects that require planning permission (farm buildings, outhouses etc.)

The UK system of Building Control allows for self-builders; their risk-based assessment on the number of inspections takes into account whether the builder is known, his experience/track record and whether there is also an architect inspecting the works (as examples). The Building Control Officer then adjusts the number of visits following this risk analysis based on a points system in order to ensure the build is in compliance with the Building Regulations.

The introduction of S.I.80 denies the centuries old tradition of the Irish person building their home for their family themselves. There are a number of contradictions in S.I.80 and this is one of them. If public opinion forces a u-turn on registration of contractors in 2015 then the basis of S.I.80, that of “regulating” building, will not be achieved. Unregistered and unregulated builders will still be in a position to control the procurement process. Introduce mandatory registration of contractors and self-building will cease to exist.

References to UK Building Control mean England and Wales.

A special thanks to Geoff Wilkinson at TheBuildingInspector.org (Approved England and Wales Approved Building Inspectors)