Self-Builders escalate to Europe: BC(A)R SI.9
by Bregs Blog admin team
With 3 working days to go to the introduction of Building Control (Amendment) Regulation (SI.9 of 2014) the representative body for self-builders the IAOSB have escalated their concerns to Europe. Below is an extract off their website and a complaint template for their members to complain to the European Ombusdsman.
Take Action, Join the Campaign and stand Up for your rights
Although this is not the first complaint against SI.9 to be lodged in Europe by a concerned stakeholder this would seem to be the first one that suggests a possible restrictive or non-competitive practice. This follows a formal unsuccessful complaint to the National Competition Authority.
Quote: “The Building Control (Amendment) Regulations 2014 (SI.9 of 2014) coming into force on 1st March 2014 will prevent competent citizens such as myself from continuing to self-build our own houses in the Republic of Ireland. This is a role which many are qualified to perform and have practiced for many generations. This action, I consider, is in breach of European Law in respect of competition, free market and freedom of movement, as well as the basic human right to provide shelter for one’s family. The restriction on the market to membership of a voluntary (non statutory) private contractor’s organisation is a restrictive and anti-competitive practice supported by the Irish Government.”
The following is a direct extract off the IAOSB website. The actual complaint document follows:
Take Action, Stand up for your rights and support the Campaign Building Control (Amendment) Regulation S.I 9 of 2014
We at Irish Association of Self Builders will make every effort possible to support and stand up for your rights. However, the following are some of the further options that are available to you to support the campaign for the revision of Amendment S.I 9 of 2014.
This should be done if you wish to take further action by a complain to the European Ombudsman for the unfair treatment of the Irish Government towards you as a self builder.
The document below should be filled with your Name and then copy and pasted and emailed to the European ombudsman: SG-PLAINTES@ec.europa.eu
Subject:: COMPLAINT DETAILS TO THE COMMISSION OF THE EUROPEAN COMMUNITIES CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW
Documents to attach with the above:
Copies of selection of written minister’s responses to TD’s concerning Self-builders :
COMPLAINT DETAILS TO THE COMMISSION OF THE EUROPEAN COMMUNITIES CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW
Member name: xxx
Complaint Failure to comply with European Community Law, restrictive practices
Field: Self-building in Republic of Ireland
Place of Activity: Republic of Ireland
Member State or public body alleged by the complainant not to have complied with Community law: Minister of the Environment, Republic of Ireland
Subject of the complaint:
I am a self-builder resident in the Republic of Ireland. I am concerned that my rights as a citizen are being debased and I may experience and will continue to experience problems as a result of the new Irish Building Control System, Building Control (Amendment) Regulation 2014 (SI.9 of 2014), which is due to come into force on 1 March 2014. I consider this legislation to be in breach of European Law in respect of competition, free market and freedom of movement. This new legislation will expressly prohibit competent owners and registered professionals along with normal citizens from undertaking the role of builder in Ireland which they are qualified and competent to undertake and which is an established tradition in Ireland and the EU for generations.
The core issue is the restriction on the market to membership of a voluntary (non statutory) private organisation, The Construction Industry Federation voluntary register of contractors (CIRI) . This is a restrictive practice. Industry estimates over 60% of houses built in Ireland are self-build projects, owners acting as main contractors. The consequence of SI.9 is that it will prevent self-builders from building their own dwellings and may result in many not being able to enter the housing market. Industry estimates an annual drop in house starts of 17% or 1,800 self-builder that will abandon projects a result of this legislation (out of projected 10,500 completions annually).
This situation can be rectified and solutions are available which allow for self-builders to build homes for their families. These solutions have been proposed to the Irish Minister for the Environment. The Minister of the Environment (Minister Phil Hogan), under the Building Control Act 1990 has the authority to establish a system of independent local authority inspections. Minister Phil Hogan has the authority to extend the Regulations to include a Register (held and administered in the Republic of Ireland under this legislation) for an independent system of building control inspectors (approved inspectors) directly managed by Local Authorities. I suggest that this be executed without delay and that the Minister immediately extend the Regulations to provide for an independent system of inspections similar to that operated in the UK and elsewhere in the EU.
The UK system permits self-building unlike the Irish system of building control which is a complete self-certification system with codified roles and professions. An independently regulated system allows self-builders and others not codified to fully participate in the procurement process: risk-based assessment is applied by a local authority inspectorate which may trigger more frequent inspections if a main contractor is not formally appointed to a project.
If required, the Minister for the Environment has the power to amend the primary legislation.
As can be demonstrated by the Irish Association of Self-Builders (the representative body for self-builders in Ireland- IAOSB), most self-builders have the prerequisite knowledge and skills to occupy the role of builder under Building Control (Amendment) Regulation (SI.9 of 2014). However, the Minister’s commitment to reinforcing the system of self-certification requires an immediate amendment to include self-builders as competent persons who can undertake the role of builder specifically mentioned in the legislation.
The IAOSB have already made an unsuccessful complaint to the National Competition Authority. I feel this matter needs to be escalated to your organisation as a matter of urgency.
When the Building Control (Amendment) Regulation (SI.9 of 2014) comes into force on 1st March 2014 I will no longer be able to act as a Builder on my own house, co-ordinating other sub-contractors on the build. As this legislation requires an established builder, someone with at least 3 years similar building experience to undertake this role, the attendant costs of employing a main contractor will mean that I will not be able to undertake to build my own house. Contrary to numerous written statements by Minister Phil Hogan, recent legal advice obtained by the representative body for self-builders the Irish Association of Self-Builders (IAOSB) has confirmed that self-building, or owners assuming the role of main contractor on dwellings, will no longer be possible under the new legislation after 1st March 2014.
The additional cost to build a home using normal procurement methods and with a main contractor appointed would be over 12% more than if I (a self-builder) occupy the role of main contractor myself, co-ordinating various sub-contractors on the build. I will not be able to afford to undertake this build as a result.
The restriction placed on me to employ a contractor member of a voluntary register operated by a private company (CIRI operated by the Construction Industry Federation) is a restrictive practice, and is against my fundamental rights and restricts my ability to provide for my family. The fact that this is enshrined in legislation indicates that the Minister is supportive of this restrictive practice.
I believe the current legislation restricts my right as a European citizen. The register of contractors mentioned in SI.9 is voluntary at present but it is planned to introduce primary legislation to put this on a statutory footing. Notwithstanding this the completion certificate for the “Builder” in SI.9 states the completion certificate “to be signed by a Principal or Director of a building company only”. In effect this precludes competent owners such as myself from undertaking this role. The structure of self-certification and codified roles inherent in SI.9 is defective and interferes with my rights as a European citizen to provide shelter in a cost-effective manner for my family.
The core issue is the restriction on the market to membership of a voluntary ( non statutory) private organisation. This is a restrictive practice supported by the Irish Government. The Construction Industry Federation primarily and all the professionals mentioned as “competent persons” on the register of professionals (Engineers, Building Surveyors, Architects) stand to benefit financially from this restrictive and unfair regulation.
Current Position regarding Self-builders pre 1 March 2014
As a self-builder I can assume the role of builder and notify the local authority of this in a commencement notice issued in advance of commencement on site. I am subject to all the current legislative requirements and am required to get any build certified by a suitably qualified professional on completion.
New Position regarding Self-builders post 1 March 2014
The Building Control (Amendment) Regulations 2014 (SI.9 of 2014) coming into force on 1st March 2014 will prevent competent citizens such as myself from continuing to self-build our own houses in the Republic of Ireland. This is a role which many are qualified to perform and have practised for many generations. This action, I consider, is in breach of European Law in respect of competition, free market and freedom of movement, as well as the basic human right to provide shelter for one’s family. The restriction on the market to membership of a voluntary (non statutory) private contractor’s organisation is a restrictive and anti-competitive practice supported by the Irish Government.
Many citizens have already suffered due to the property collapse in Ireland and subsequent banking crisis. Due to the announcement of this new legislation and its implications many citizens will not be able to own their own home. Misleading and misrepresentative statements by Minister Hogan and the department of the Environment concerning the status of self-building may result in self-builders commencing work after 1st March. Recent legal advice obtained by the representative body for self-builders the Irish Association of Self-Builders (IAOSB) has confirmed that self-building, or undertaking the role of main contractor on dwellings, will no longer be possible under the new Regulation. On completion the builder’s certificate “must be signed by the principal or director of a building firm only”. Owners who sign this document will be deemed to be non-compliant. This would suggest possible issues with self-builders commencing after 1st march under the new regulation being non-compliant on completion. Refinancing on conveyancing difficulties may be experienced by self-builders as a result. As there is no provision for retrospective compliance in this regard this situation is of grave concern.
I invite the European Commission to investigate my complaint as a matter of urgency, considering the evidence attached and to act swiftly to ensure that the core issue is the restriction on the market to membership of a voluntary ( non statutory) private organisation. This is a restrictive practice. I invite the European Commission to preserve their right to allow citizens to provide a home for their families in a financially affordable fashion and allow those commissioning projects as self-builders the opportunity to operate in the role of builder. It is critical that this injustice to the citizens of Ireland, and anyone else from the EU who wishes to reside in Ireland, is rectified immediately.
These solutions have been proposed to the Irish Minister for the Environment.
In the UK there is a system of independent local authority and approved inspector inspections- a system of independently regulated government inspections similar to most other EU countries. Under this system I can operate as a builder and “self-build” domestic projects. There is no question that any self-builds in the UK or elsewhere in the EU are in some way deficient or less compliant than other forms of procurement. Self-building is a valid and essential way for citizens to undertake cost-effective construction of their own houses in a cost-effective and appropriate fashion.
History of self-building
The tradition of building one’s own house is age-old. In Ireland due to its history the tradition of owning one’s own house is Very strong. Ireland has a very high proportion of house ownership compared to mainland Europe. Industry estimates well over half (60%) of all homes built in any given year in Ireland are self-builds, houses where the owner is the main contractor co-ordinating other trades and sub-contractors. The IAOSB have estimated that due to the introduction of SI.9 approximately 28% of self-builds will be abandoned annually due to additional costs. In 2012 there were 10,500 house completions- out of this number 6,300 would have been self-builds. When SI.9 comes into effect, and based on a similar output the number of self-builds abandoned annually would be 1,800.
Irish Association of Self-Builders (IAOSB)
The Irish Association of Self Builders is a voluntary organisation that was set up in mid 2003 by a group of self builders whose aim has been to provide help and support to people who are taking up the challenge of building their own home.
Building Control (Amendment) Regulation (SI.9 of 2014)
Adequate Regulatory Impact Assessment (RIA) was not completed for SI.9 of 2014 (previously SI.80 of 2013). It would appear that the Department did not carry out a Regulatory Impact Assessment (RIA) of the March 2013 wording of S.I.80. The RIA part (section 4) 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 are a notional cost per dwelling of between €1000 to €3000. On the housing side the more significant costs to self-builders, house starts abandoned, and increased costs on smaller qualifying residential extensions are not mentioned. Remarkably the cost to SME’s, capital spending delays and costs for all non-residential projects (qualifying) are not assessed. This is an extraordinarily brief assessment of a very significant amendment. Current industry estimates of the possible impact of SI.9 suggest a recurring annual cost of up to €500m per year.
Self-builders have complained to local representatives and TDs, but the Minister for the Environment has consistently ignored self-builders rights, qualifications and skills. The Minister appears to be unaware that self-builders have historically practiced building to a high standard in the Republic of Ireland and that they are qualified and competent to act as builders. The following link is to a question asked by a local TD to the Minister for the Environment. Link to Minister Phil Hogan’s response to Irish Association of Self Builders regarding SI 9: http://www.iaosb.com/minister phil hogans response to irish association of self builders regarding si 9.html Self-builders Members complained to Minister Hogan,. Link to Letter from Iaosb to Minister Hogan for further clarification of Building Control (Amendment) Regulation S.I 9 of 2014:
The Irish Government and the department have issued conflicting and misrepresentative information concerning the status of self-builders. The IASOB has written to local authorities and to the department of environment requesting that this be rectified: Link to Letter from IASOB to Building Control Departments:
http://www.iaosb.com/letter from iaosb to building control department’s.html
Building Control (Amendment) Regulation (S.I. 9 of 2014) excludes self-builders
The core issue is the restriction on the market to membership of a voluntary (non statutory) private organisation. This is a restrictive practice. The new Regulations exclude competent self-builders from undertaking the role of builder, certifying works and compliance with Building Regulations for all buildings, a role in which many are specifically trained, experienced and competent.
No detailed or legitimate reasons have been given for excluding self-builders practising in the Republic of Ireland:
The new Regulations exclude self-builders, but no detailed, evidenced or legitimate reasons for this have ever being provided. The Irish Government has never explained its motives for excluding self-builders and for excluding established, qualified and competent persons from continuing to practice in the Republic of Ireland. In addition the massive cost to industry, citizens and taxpayers has been inadequately addressed. One of the key stakeholders involved in the formation of SI.9 the Royal Institute of the Architects of Ireland (RIAI) has written to Minister Hogan and others strenuously requesting the legislation be deferred (attached).
The core issue is the restriction on the market to membership of a voluntary (non statutory) private organisation- the voluntary contractor’s register. This is a restrictive practice. There is no evidence to suggest this will enhance the value or quality of dwellings currently being enjoyed by self-builders. The competency and assessment criteria for prior experience for entry to this voluntary register (CIRI) are unclear and arbitrary. Access to the voluntary register, supported by Minister Hogan, favours existing Construction Industry Federation (CIF) members who do not have to prove relevant experience and mitigate against others who may or may not be granted entry after a subjective assessment.
Non-compliance with European Law
The Irish Government has no legitimate reason to exclude self-builders from continuing to practise in Ireland. The actions taken against self-builders are not proportionate. Self-builders have been excluded with the result of restricting the market to a voluntary register of established builders. The proposed mandatory register to be introduced shortly in 2015 compounds this. On this ground I find the Building Control (Amendment) Regulation 2014 (SI.9) in breach of European Law and a restrictive practice.
The Good Friday Agreement 1998
It is also important to recognise the particular issue specifically within Ireland and the The Good Friday Agreement. The ‘Rights, Safeguards and Equality of Opportunity’ section clearly states that the parties affirm the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity. As an EU citizen I can undertake self-builds in the north of Ireland.
The Example of the EU
In the UK they operate an independent system of local authority inspections (and independent inspectors) that accommodate self-building within a statutory framework of independent regulation and independent building control inspections. A simple cost-effective system ensuring adequate pro-active consumer protection against defects as they occur rather than the current Irish system of self-regulation.
The Irish Government is knowingly depriving self-builders the well-established tradition to continue practicing in the Republic of Ireland. This is a direct contradiction to the intent of the Regulations and therefore not in the interest of Irish consumers, nor in the interest of the public. There is no legitimate motivation for such action. The core issue is the restriction on the market to membership of a voluntary (non statutory) private organisation. This is a restrictive practice.
Even if the Irish Government had a legal reason to deprive self-builders of their right to practice in the state, the Building Control (Amendment) Regulations 2014 (SI.9 of 2014) do not propose proportionate alternatives to assist established self-builders in the Republic of Ireland to continue to provide homes for their families.
As detailed this grave situation can be rectified and solutions are available which provide for self-builders to be included as competent to undertake the role of builder. The restrictive practice of a voluntary (and proposed mandatory) register of contractors is not necessary if a normal independently regulated system of building control was introduced instead of a codified reinforced system of self-regulation as proposed in SI.9. These solutions have been proposed to the Irish Minister for the Environment.
NAME AND DATE
Posted with permission of IAOSB on 25th February 2014