Clear and auditable trail: consumer protection? BC(A)R SI.9
by Bregs Blog admin team
In a recent Dail exchange the two pillars of BC(A)R SI.9 are reiterated by Minister Hogan, that of traceability and accountability, a clear and auditable trail of those involved in the construction process to enhance consumer protection under the Building Control (Amendment) Regulation (SI.9 of 2014).
Link to Dáil Questions by Tomas Pringle (Independent TD)
Traceability and Accountability:
The online Building Control Management System (BCMS) has been suggested by Minister Hogan and the Department as offering a secure store for all documentation required under the new regulation. Unfortunately this is not the case. In a previous post we noted this was not the case (Link to bregs blog post: no checks of designer,builder,or assigned certifier on bcms):
One of the key omissions of the new Building Control Management System (BCMS) is that there appears to be no checks on the legitimacy and qualifications of the person registering for the system and the legitimacy and qualifications when assigning the Designer, Builder or Assigned Certifier. Currently (as the system stands) it is possible to register for the system under a fake email and user name, as this is all that is required. There would appear to be no checks upon the name or qualifications of the builder. You could possibly use a fictitious name of a builder and the system may allow this to be an Assigned Builder.
A clear and auditable trail
The Department and Minister Hogan have suggested that there will be a clear trail of documentation what will be accessible to consumers. In a previous post we noted under the Code of Practice there may not be a “clear and auditable trail” or record under BC(A)R SI.9. (Link to bregs blog post: irish building magazine: surveyors appeal to government; bcar si.9):
Under the Code of Practice local authorities have avoided the necessity to retain submitted documents made under the new regulation. They are required only to retain a register or list of documents, not the actual documents themselves. In fact the responsibility for maintenance of all records resides with private companies or individuals, the Design and Assigned Certifiers, who could be employees of development companies. This would appear to be a key flaw in the new system. If Certifiers go bankrupt, are wound down or simply mislay electronic records key information required by consumers trying to obtain redress for defects post-completion through the courts may not be available. As this system has no security protocols there is no way to guarantee the veracity of information lodged at present. These are two major shortcomings in the current system.
Deirdre Ni Fhloinn, specialist construction lawyer and consultant presented that there was no improvement to consumers rights under the new regulation at an Engineers Ireland CPD on 17th January 2014. This legal perspective was explored in her recent post on the blog (Link to blog piece here: will bcar si 9 bring any benefit to consumers?):
“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.”
Minister Hogan has confirmed in a Morning Ireland RTE radio interview on 28 February 2014 “There is no change in the technical performance standards in respect of a newly finished home……whether you’re a self build assigned certifier or whether you’re a professional person we want to ensure that what people sign up for is actually what has happened along the chain of responsibility in the course of the construction of the home.” Link to audio clip here: Minister Hogan defends BCAR SI9
Currently at time of writing there are no revised versions of either public or private forms of contracts that incorporate BC(A)R SI.9 into standard conditions. This was one of the reasons for deferral tabled by the representative body for architects (RIAI) in letters to Ministers Hogan and Bruton last January and discussed in the same radio programme. The compelling case for deferral was noted in our previous blog post riai confirms call for deferral of bcar si-9
What appears to have been delivered, at enormous cost to the industry and consumer, is an inadequate online system that is not secure and can be easily manipulated; a public record that does not keep any of the technical documentation lodged for access by consumers (only notices received and issued as confirmed in Code of Practice) and finally a regulatory system that does not deliver any improvements to technical standards or enhancements to consumer protection. All with a morass of unintended consequences and increased costs across the entire spectrum of construction industry. Self-builders and farmers in particular will bear the increased cost of the mandatory requirement to use a privately registered main contractor for projects. Industry estimates BC(A)R SI.9 could cost the industry and consumer €3bn by 2020 or 30,000 jobs.
What a wasted opportunity.
In posts to follow we will be concentrating on possible solutions or more effective practical alternatives and “fixes” for some of the problems with BC(A)R SI.9 highlighted. Will we see more part-deferrals like SI.105, introduced for hospitals and schools on 7th March? Industry and consumer calls would appear to be getting louder for the introduction of an immediate transition period of 12 months. This could afford stakeholders and government an opportunity to come together, address and remedy some of the unintended consequences of Building Control (Amendment)Regulation (SI.9 of 2014). These are impacts on commercial fit-out projects, SME’s, foreign direct investment projects, self-builders and farmers, groups one would not immediately associate with projects like Priory Hall or the pyrite scandal, the specific target of the new regulation.
Dáil Extract to follow:
Question No. 7
Chun an Aire Comhshaoil, Pobail agus Rialtais Áitiúil:
To the Minister for the Environment, Community and Local Government:
To ask the Minister for the Environment, Community and Local Government if he has considered the concerns of the RIAI in respect of the new regulations regarding the inspection of building works at key stages during construction; and if he will make a statement on the matter.
– Thomas Pringle.
For ORAL answer on Wednesday, 12th March, 2014.
Ref No: 11912/14
Minister for the Environment, Community and Local Government (Mr. P. Hogan)
Every effort has been made to ensure that arrangements have been in place for a successful transition to the new building control arrangements on and from 1 March 2014.
The new online Building Control Management System (BCMS) has been developed to provide a common platform for clear and consistent administration of building control matters across the local authority sector. Briefing and guidance on the new system has been provided for local authority staff and representatives of the key construction sector professional bodies and the Construction Industr y Federation in recent weeks.
The definitive Code of Practice for Inspecting and Certifying Buildings and Works, was circulated to industry stakeholders on 7 February 2014.
Standard forms of contracts used for both private and public sector projects fall to be revised to reflect the new regulatory environment. The Government Construction Contracts Committee and the key construction professional bodies both report strong progress in advancing this work within their respective sectors. The Government has established an oversight group to ensure no unavoidable delays will occur in relation to critical public infrastructure projects at a time when construction activity and employment depends significantly on public sector investment. Briefing and guidance is available within the public and private sector to deal with contractual challenges and procurement issues that will inevitab ly arise as change takes place.
The above measures (i.e. the BCMS, the Code of Practice and guidance on contracting matters) are the key supports necessary to ensure the new regulatory arrangements can work well in practice.
C oncerns that the new regulations prevent a self-build situation are unfounded although all house-builders/owners must comply with the relevant requirements . An owner who intends to self-build will, as before, assume legal responsibility for ensuring that the building or works concerned are compliant and they will be required, as builder, to sign the Undertaking by the Builder and the Certificat e of Compliance on Completion.
As local authorities and industry now move to full implementation of the new regulatory arrangements, my Department will continue to work with all parties to ensure they understand their obligations and the steps necessary to meet them.