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,”

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