Collins & O Cofaigh- A BETTER way: BC(A)R SI.9 Solutions

by Bregs Blog admin team

The following is a recent paper submitted by Eoin O Cofaigh and Michael Collins, two past presidents of the representative body for architects (RIAI). In this paper practical workable alternatives to Building Control (Amendment) Regulation (SI.9 of 2014) are discussed.

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Building Control (Amendment) Regulations – A BETTER way

1. Background

The State should not primarily be liable for the cost of building control nor should the State be liable for defects in construction.

Concerns have been expressed that S.I. 9 of 2014 will not protect the householder in the way it sets out to. In 2012, submissions by non-construction sector stakeholders (NCA) and the Pyrites Panel said that an inspection system independent of the designer and the contractor is needed.

There is a wide consensus across consumer organizations and in the media, supported by World Bank and European Consortium of Building Control studies, that self-certification as in S.I. 9 will not work, particularly for speculative residential development. It works in no other sector of the Irish economy and is even less likely to work in construction.

At the same time, the unintended consequences of S.I. 9 for non-residential projects, especially for complex projects such as hospitals, and for FDI projects are such that the system increases costs and uncertainty unnecessarily.

What is needed is a simple measure to improve and sustain the quality of design and construction, particularly with speculative residential development.

This should be backed by compulsory latent defects insurance to guarantee redress to consumers in the case of the small number of residual defects that will occur, or in the case of financial failure of a development/construction company.

2. Proposal

Replace S.I. 9 of 2014 by a new statutory instrument along the following lines:

1. Set up a register of “Approved inspectors”, answerable to the building control authority.

2. This register to be open to architects, architectural technologists, appropriately qualified engineers, and building surveyors, with appropriate qualifications and adequate experience. Admission to be competence-based, with knowledge of building regulations, building control regulations, and building construction.

3. The Approved Inspector to carry an appropriate level of professional indemnity insurance.

4. To start with, the system to apply in the speculative residential sector and to the one-off (“self-build”) house.

5. The Approved Inspector audits the design for compliance with building regulations; and inspects the construction works for compliance with building regulations.

6. Inspection of designs would include Parts B and M for one-off houses. Pending review, fire safety and disability access certificates would still be required for apartments.

7. The design team must still prepare full designs and inspect the works as at present. The contractor must build in compliance with the building regulations as is routinely done on well-organized buildings. The Approved Inspector issues reports to the Local Authority at the start and completion of construction, confirming that he has inspected the design and construction and found nothing wrong.

8. If the Approved Inspector finds non-compliant design, he refuses to issue the Design Certificate until he has been given amended design drawings. Given that the architect will have to explain any such delays to his client, the architect will make sure the designs are right in the first place. This raises design standards.

9. If the Approved Inspector finds non-compliant construction, he tells the contractor and the architect, and he has the ultimate sanction of being able to issue a “Cease Works Notice”. He will refuse a Completion certificate until the matter is put right.

10. The Approved Inspector inspects 100% of designs and 100% of sites. On top of this, the building control authority profiles risk, and inspects a small number of designs and building works as indicated by its risk analysis, to ensure that the overall system is working properly.

11. If the Approved Inspector is negligent, he can be struck off the register and can be sued.

12. Latent Defects Insurance, paid for by the developer with a one-off up-front payment, is put in place to pick up any defects which get past. (The detail needs further discussion.)

3. Approved inspectors, independent company auditors, and the UK

This system resembles the system of independent auditors of company accounts. A company has an internal accountant. The independent auditor inspects the annual accounts and signs off on them. The accounts are lodged to the Companies Registration office. The auditor is paid for by the company and is answerable to the State. The auditor is not responsible for the complex task of preparing the accounts in the first place: his sole task is to check for financial probity.

A developer wants to build a building. The Approved Inspector inspects the design and the construction and signs off on them. The designs are lodged at the Building Control Authority. The Inspector is paid for by the developer, and is answerable to the Building Control Authority. The architect, engineer and builder have the complex task of designing and building the building; the inspector’s task is to focus exclusively on building regulations compliance.

This Approved Inspector system resembles the “Approved Inspector option” in the building control system in England and Wales. The system is also the same as that in Northern Ireland except that here, the Approved Inspector, answerable to the local authority, substitutes for the N.I. building inspector in local authority employment.

4. Why is this system better than that in S.I. 9?

• The cost to the State is minimal. The developer pays the fee of the Approved Inspector. The only cost to the State is to maintain the register and monitor the operation of the system. This could be funded through an appropriate licence fee.
• The learning experience for a young architect of having their designs audited by an experienced architect or engineer will be intense and immensely fruitful. This will drive better design standards.
• The learning experience for a contractor is to have the experienced Approved Inspector arrive on site, who has inspected many such sites and knows what to look for, concerned with nothing except building regulations compliance, with local authority backing.
• The system is better for the State. It will deliver better design and construction, not just better paperwork.
• It gives the State an additional layer of protection. The Approved Inspector with annually renewed and proven professional indemnity insurance stands between the building defect and the exchequer.
• The system has the capability of solving problems around experienced technologists whose livelihoods are undermined by S.I. 9.
• It solves the self-builder issue. The system gives the self-builder a straightforward independent inspection system which he pays for, the same as anybody else. If his designs are good enough – they pass, at no cost to him. If they are not good enough, he must prepare an adequate design the same as anybody else, however he so chooses. If his building is good enough when the Approved Inspector arrives – that is fine. If not, the self-builder must rectify the defects the same as anybody else.
• It solves the FDI issue. S.I. 9 was introduced to solve problems in the residential sector but affects all construction projects of any significance. By revoking S.I. 9, it allows the technologically advanced (Intel) FDI project proceed under self-certification, as is better for many reasons.
• The system requires no change to construction contracts and hence will not cause delays in the construction sector. The Approved Inspector operates independently of the contract administrator (Architect or Engineer) and has statutory authority.
• The system is better for the consumer. Per the submission of the National Consumer Authority, this will give better results than a system of self-certification.
• The system protects the consumer from loss with a no-fault system of redress and no litigation is needed.
• The person who buys or rents a new home gets independent third-party audit by experienced professionals, answerable to the local authority.
•  The system is better for the construction sector. It will drive higher standards through dedicated experienced inspectors who with larger and recurring workloads will feed-back into better design and better building.
• Through feedback to the local authorities of the inspectors’ experience across many designs and sites, systemic problems will be spotted earlier.

5. Conclusion

A system as outlined above can be set up quickly. It involves no major change in existing contractual and legal structures. It needs no primary legislation: the Building Control Act already provides for the designation of such persons to act in this capacity.

Such a system will have the support of the consumer organisations and the public.

The above opinion piece was written by Michael Collins (RIAI President 1986-1987) and Eoin O Cofaigh (RIAI President 1998-1999) in late 2013. It has since been updated to refer to the new SI 9 of 2014 and is submitted here by Eoin O Cofaigh.