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.

Legal perspective: consumer benefit? BC(A)R SI.9

by Bregs Blog admin team

consumer-protection-act

This is a guest post submitted on 14th March 2014 for the blog to put slides delivered at the Engineers Ireland CPD event of January 2014 in context by DEIRDRE NÍ FHLOINN, Consultant, Reddy Charlton, Solicitors. Guest post to follow:

I was recently asked to address a CPD event organised by Engineers Ireland on the subject of the Building Control (Amendment) Regulations 2014 (BCAR 2014), with a particular focus on the consumer perspective.

I considered in that respect whether the Regulations created any new rights for consumers.

When publishing the 2013 Regulations in April 2013, the Minister characterised the Regulations as a rolling set of guarantees

http://www.environ.ie/en/DevelopmentHousing/BuildingStandards/News/MainBody,32735,en.htm.

BCAR 2014 has been described by various commentators, and in the media, as being intended to deal with major building failures such as that which occurred at the Priory Hall development in Dublin.

The residents at Priory Hall had two enormous problems.  The first was that the building was defective and uninhabitable.  The second was that the builder did not rectify those defects, with the result that the residents were left facing the cost of repairing the defects themselves. The new systems introduced by BCAR 2014 may go some way to preventing the first problem from arising on another development, but do not deal with the second problem.

There are no new legal rights or remedies for consumers created by BCAR 2014. Rather, the benefits to consumers are intended to result from improvements in the building process, such as the requirement for an assigned certifier to devise and implement an inspection plan.

The usual contract structure for purchase of a new house or apartment is that the purchaser will into a site transfer agreement with the landowner, and a separate building contract with a builder.  If a defect arises, the primary route for recovering the cost of repairing that defect should be the building contract.  However, homeowners face a number of hurdles in this respect.

The standard Law Society building contract is signed under hand, with a limitation period for actions of 6 years from the date of the breach, rather than 6 years from the date of discovery of the breach.    In  addition, there is a restriction on assignment of building contracts without the builders consent.  Most purchasers buying a house or apartment less than 6 years old will not insist on receiving an assignment of the building contract in their favour, and thus have no remedy in contract if a defect emerges.

Even assuming that the homeowner does have a contract with the builder, the homeowner will need to prove that there was a breach of that contract and that the defect resulted from that breach.  The homeowner may have little in the way of documentation in order to prove this.  One significant development from BCAR 2014 is that the volume of documentation available from the Register (or via the Freedom of Information legislation) should improve the position of litigants in this respect.

Without a contract, the second purchaser can only rely on the law of tort, which generally does not allow recovery of the cost of repairing a defective building against a builder.  The position in tort as against professionals involved in the building process is different, and does allow recovery of the cost of repairing a defective building where there is a relationship of reliance and proximity between the parties.

The homeowner is in a vastly different position to an employer procuring, say, an office building; the homeowner appoints no architect or client representative to monitor the build or to carry out inspections.

The only party (other than a certifier appointed under BCAR 2014) that is legally entitled to carry out inspections during the construction of a residential development is the Building Control Authority, which has extensive powers of inspection and enforcement under the Building Control Act 1990. Building Control Authorities are protected from civil liability for the cost of rectifying buildings that not comply with the Building Regulations by s. 6 (4) and s .21 of the Building Control Act 1990, and via a line of caselaw from the UK that is reflected in those provisions.  The legislation grants powers to BCAs rather than assigning duties to them.

The result is that the party with the most power to intervene in the building process has no financial interest in the outcome, and the party that will ultimately carry the financial risk of a failure to comply with the Building Regulations, the purchaser, has little ability to influence the building process.

A coherent and predictable system of compensation for consumers must take the existing legal environment as its starting point in order to provide a meaningful, accessible financial remedy in the event that defects emerge in dwellings.   Defects insurance should support that legal remedy. This is particularly important in light of the recent calls from the ESRI and elsewhere about the number of new dwellings required to meet demand in the coming years.

Deirdre Ni Fhloinn is specialist construction lawyer and consultant at Reddy Charlton Solicitors. This post is a general commentary on certain issues arising from the Building Control (Amendment) Regulations 2014 and should not be relied upon as legal advice.

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Link to: “Building Control (Amendment) Regulations 2013 Legal issues – compliance and the consumer perspective Engineers Ireland 17 January 2014” CPD presentation:

DNIF Final PPT 17 01 2014 (draft of Thursday)

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Architect’s Opinion Piece: BC(A)R SI.9

by Bregs Blog admin team

fot tomasz stokowski-2155 architect at work

‘When small children are presented with a situation they don’t like, they do not resort to reason. Rather, they repeatedly assert what they want. “You have to go to bed.” “No.” “Why not?” “Because I don’t want to”. In place of argument, desire… For some years now, denial and fantasy have been the dominant attitudes, not just of the Irish Government but of the country’s establishment as a whole.’

– Fergal Crehan, “Do Not Want,” tuppenceworth.ie

The introduction of Ireland’s new Building Control regime has been a mess. That is not a controversial statement. What frightens many Irish architects – and frightens is not too strong a word – is the very real possibility of facing massive lawsuits due to excessive risk, and the huge bear-traps that are an inevitable consequence of trying to work a system which is not yet fit for purpose. These are real issues, dissected elsewhere on this blog, and there is no need to rehash them here.

However, there’s an equally important if less tangible difficulty with the way that this has worked out. The issue is purely one of trust. We are so used to analysing the reasons for the outcry of the architectural profession that it’s easy to ignore the detrimental results of the outcry itself. Let’s just remind ourselves: more so now than at any point since the Building Control Act was introduced, Irish architects – and a fair chunk of the building trade in general – routinely assume that those in charge have almost no understanding of the industry they’re supposed to be regulating. The root causes of this assumption are, quite obviously, important; but the antitrust situation in which we find ourselves is possibly more even destructive than its root causes.

The situation is highly reminiscent, in fact, of the introduction of the Public Works Contracts which now have an all-round dire reputation. Many concerns around the contracts were related to straightforward legal issues, but others were ultimately rooted in rhetoric surrounding the contracts rather than the terms of the contract themselves – yet this doesn’t make them any less real. To pick a straightforward example, it became a common industry truism that “the building needs to be fully designed” for works designed by the Employer, even though the contracts don’t overtly require anything of the sort. The industry shaped itself around this perception, regardless of what the contracts actually said. However, if a contractual dispute goes to arbitration over something that’s only perceived to exist, then the effects are real enough – even if you’re on the winning side. When people thought the world was flat, they behaved as if it was flat, and the reality of the situation didn’t really matter. Conflicts only arose when people pointed out that it was round.

Right now, Minister Hogan is intent on behaving as if the world is flat.

This brings us to the issue to which the opening quote alludes. Minister Hogan’s public statements repeatedly tell us what he wants to be true, and architects are growing wearily accustomed to hearing the minister make statements that they do not recognise as accurate. There are almost too many obvious examples to list, but let’s take one that is particularly blatant: Minister Hogan stated repeatedly that there is no bar to self-builders under the new legislation, and they can sign the Certificate Of Compliance required. This certificate clearly states that it is “to be signed by the Principal or Director of a Building Company only” [italics mine], and there is little ambiguity in that sentence. The impression is of someone who believes that he can state what he would like the legislation to say, and that this is more important than trifling matters like the actual text.

In a narrow sense, he is correct. The realpolitik of the situation is that, if the Minister directs County Councils to accept certificates signed by self-builders, they will accept them. Legally, this is a real issue – if someone buys a non-compliant house that has been signed off by an uninsured self-builder, and looks to legal action, we have a messy situation. However, this speculative concern is arguably no more important than the corrosive effect of an entire profession – and quite possibly, industry – who take it as read that the Minister doesn’t know what he’s talking about.

If we try and look at the Building Control system that Minister Hogan seems to want, it’s actually not a bad system in the abstract. Not perfect, mind you, but reasonable on the surface: private assigned certifiers, with statutory inspection rights and duties; builders warranting their own work; a system of documenting and lodging all the certificates and information; and state building control authorities with inspection targets to hit and a requirement to choose the buildings on which they most need to check up. Sensible enough, albeit costly.

The issue with S.I. 9. is simply that, whatever legislation the Minister thinks he’s introduced, this isn’t it. This isn’t quite the worst of sins; there are ways of solving shortcomings in legislation, after all. What’s more toxic is that Mr Hogan’s complete failure to recognise S.I.9’s shortcomings no matter how many times they are pointed out, and indeed his refusal to even acknowledge that serious dissenting voices exist, has caused an entire profession to lose trust in someone who is in a sense their regulator. The other numerous examples of the Minister’s words bearing little relation to the experience of architects – the one to three thousand euro claim, the end to self-certification nonsense, the parroting of the same script about extensive consultation that did not actually occur – just make this worse.

The antitrust issue arguably took root when the draft regulations were published. They showed such a fundamental lack of understanding of how any building is built that many within the industry began to  half-believe those drafting the legislation were just incompetent. In a balanced moment, we would all soberly admit this can’t be entirely true; but once the perception exists, then the behaviour of an entire industry shifts in a way that is very real. We have reached a point where constructive dialogue between the Department and the architectural profession is all but impossible.

This is why S.I. 105 is so disastrous. If you wanted to be charitable, you could argue that S.I. 105 is a pragmatic workaround. The reference to Primary Care Centres gives the game away; the primary reason for this measure is almost certainly to catch projects being procured under PPP systems. These are large projects with preexisting contracts, ones that are prone to legal entanglement, and varying the terms and conditions at this stage would be difficult. No, the problem is entirely to do with perception: the Department insisted repeatedly that there was no issue with the timescale of the legislation’s rollout, and then suddenly acknowledges that there is and produces a workaround… for government buildings only. Had this been flagged, signposted and explained, it might just have been palatable. Instead, it’s created a picture of self-serving incompetence.

In short, the Minister’s conduct has been every bit as toxic as the legislation it has engendered. The decision to tacitly go to war with the very people who are enforcing this putative system will, in itself, cause as much chaos as the inadequate legislation itself. The whole debate has been distorted, because any discussion of Building Control in Ireland now takes place in a long shadow. Step back, and it’s easy to see that the shadow is precisely the shape of Big Phil.

The opinion piece was submitted by Mike Morris on 14th March 2014

BRAB and BC(A)R SI.9

by Bregs Blog admin team

the_questions_our_healthcare_debate_ignores

The Building Regulations Advisory Body (BRAB) is set up under the Building Control Act to advise the Minister for the Environment on the building regulations. So, what does the BRAB think about the regulations brought in last March? Were they consulted about draft regulations in 2012? Presumably so. Do the BRAB think the 2013 regulations protect the consumer against future Priory Halls? Do they think the regulations protect businesses against the risk of intellectual property theft from all the drawings to be given to the local authority? Did BRAB discuss the possibility of independent inspections, which so many organizations called for in their submissions to the Minister on the draft regulations?

Presumably BRAB meets regularly and somebody keeps a record of what is discussed. There is no detail on the Department of the Environment website about this though. Presumably, too, all this information is available under an FOI request. Is there anybody with any information on when the BRAB last met – it must be since these regulations were introduced last March – who can offer any advice on this?

Link to BRAB – Department of the Environment, Community & Local Government

http://www.environ.ie/en/DevelopmentHousing/BuildingStandards/BRAB/

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extract from site:

BRAB (Building Regulations Advisory Body)

The Building Regulations Advisory Body (BRAB) is a statutory body appointed by the Minister, under Section 14 of the Building Control Act, 1990 to advise him on matters relating to the Building Regulations. Membership of the body includes representatives from the construction industry and regulators at national and local level. BRAB was originally established in 1992. The current BRAB was appointed for a five-year term by Ministerial Order dated 14 June 2007.

The DEHLG (Building Standards Section) provides secretarial services to the BRAB. The DEHLG develops proposals to amend the Building Regulations and related Technical Guidance Documents (TGD) in consultation with BRAB.

Members of the BRAB:

Mr. Jay Stuart, Chairperson, Integrated Sustainable Design Const.

Mr. Michael Brown, National Standards Authority of Ireland.

Mr. Brian McKeon, Construction Industry Federation.

Dr. Eugene Farrell, Home Bond.

Mr. Mark McAuley, Building Materials Federation.

Ms. Denise Germaine, Chartered Inst. of Architectural Technologists.

Mr. Gerard Grogan, Tánaiste’s nomimee

Mr. Jim Keogh, Electro-Technical Council of Ireland.

Mr. Jack Callanan  National Disability Authority.

Ms. Emer O’Siochru, An Taisce.

Ms. Maria Melia, Chief Fire Officers Associations.

Ms. Ann Mills, City & County Engineers Association.

Mr. Johnny McGettigan, Irish Building Control Institute.

Ms. Minka Louise McInerney, Royal Inst. of the Architects of Ireland.

Mr. Jimmy Keogan, City & County Managers Association.

Ms. Krystyna Rawicz, Society of Chartered Surveyors.

Mr. Gary Treanor, Irish Timber Frame Manufacturers’ Association Ltd.

Mr Sean Balfe, National Standards Authority of Ireland.

Ms. Sarah Neary, Senior Building Adviser, Building Standards, DEHLG.

Mr. Noel Carroll, Senior Housing Adviser, DEHLG.

Ms. Jacqui Donnelly, Architect, Heritage Policy & Architectural Protection, DEHLG.

Ms. Terry Prendergast, National Consumer Agency

Mr Cian O’Lionáin, Principal Officer, Private Housing Sector & Building Standards, DEHLG

Ms Edel Collins, Office of Public Works

Mr Kevin O’Rourke, Sustainable Energy Authority of Ireland

Opinion Piece: A Self-Builder’s thoughts on CIF: BC(A)R SI.9.

by Bregs Blog admin team

philip crampton pat rabbitte and tom parlon 

Myself and my husband attended the CIF Roadshow yesterday. Mr Tom Parlon and Mr Hubert Fitzpatrick and others gave their presentation. I raised the question of self build/direct labour and was told its not banned at the moment, a self builder can still go ahead (next year this will change they said) but they fail to see any professional working alongside self builders. I did state that a self builder CANNOT still go ahead as they are not principals or directors of building companies.

They were basically recruiting people for the ciri at a registration fee of €738 incl vat. (Non profit making they said??) My husband asked if he joined would he be guaranteed work? I think you know the answer to that they said. They were then asked why anyone would join the ciri at that money when there was already the national guild list at €295 plus vat? No reply from the speakers – my husband then added ‘i suppose the national guild is in the bin next year as well!’ Finally they were asked will the people have to be qualified to be on this list? That will be a matter for the Board they said.

The fact is that there WILL be unqualified people on this list because there is NO School for Builders – this list will never, ever be credible. The whole notion of a statutory list for builders is nonsense. I am very caring and am a competent mother who can bandage a knee, give out medicine etc. But i cannot go on a Register of Nurses as i am not qualified to do so. We, as self builders will be lobbying for a Register of Qualified Tradesmen to be available at each Local Authority. Maybe the revenue generated from a modest registration fee can go towards salaries of Building Inspectors. Makes perfect sense to us!

The above opinion piece was submitted by Amanda Gallagher on 14th March 2014.