O’Cofaigh letter to Senators: BC(A)R SI.9 (SI.105)

by Bregs Blog admin team


Previous president of the representative body for architects (RIAI) Eoin O Cofaigh, sent the following letter to a selected number of Independent and Opposition Senators in advance of the debate in the Seanad on 10 April 2014. You can listen to the audio clip of the Seanad debate here.


Building Control (Amendment) (No.2) regulations 12014, S.I. 105 of 2014

Dear Senator,

Next Thursday the Seanad debates a motion proposed by Senator Daly and seconded by Senator O Brien, “That Seanad Éireann resolves that Statutory Instrument No.105 of 2014 Building Control (Amendment) (No.2) Regulations 2014 be annulled.”

This motion is of the utmost public importance. The ability of the second House of the Oireachtas to see beyond the politics of the day and identify key issues of longer-term public interest confirms last year’s referendum result. Thank you for deciding to debate it.

I am an architect in private practice, for over 30 years now. I was President of the Royal Institute of the Architects of Ireland (1998-1999); President of the Architects’ Council of Europe in 2000; I am an Honorary member of American, Russian and German architectural institutes; I was a member of the Government’s Building Regulations Advisory Body from 2001-2007; an RIAI Council member since last January. Since May 2012 I have been an opponent in public of the changes which the Minister for the Environment has been making to the building regulations. This letter is of course written in a personal capacity.

Perhaps you will find the following of some use.

1. Background to the Building Control (Amendment) Regulations 2013-2014

The building regulations were introduced in 1991 in response to the “Stardust disaster”, in which many people lost their lives, a tragedy never to be repeated. They were welcomed by the construction sector and did raise building standards. But the construction regulation in Ireland is always reactive; and already in 1992 and repeatedly in the years afterwards, architects – among others – called for better enforcement of the regulations. Despite promises from Ministers and the Department of the Environment, this never effectively happened.

(Not surprising that there was no enforcement. The £25 (€30.75) charged per house Building Regulations Commencement Notice fee charged in 1991 today stands at … €30. So how could the system ever have paid for itself?)

It took the pyrites and “Priory Hall” disasters to introduce the next round of changes. An Irish solution to an Irish problem:- “When there’s a problem with enforcing a law: change it.”

The Building Control (Amendment) Regulations 2013, as subsequently amended and re-introduced as S.I. 9 of 2014 and as further modified by the regulations you are considering annulling, seek to respond to pyrites and “Priory Hall”. The Minister’s intention was and remains good, even if non-enforcement was the problem; and even if the new system is a complete disaster and will not make matters better for house buyers.

2. What’s wrong with the Building Control (Amendment) Regulations?

S.I.9 (which of course is not the subject of your motion):-

•Impacts on every significant building and interior fit-out project (not just on the speculative residential sector where the problems were caused);

•Confers a de facto monopoly on building design and inspection of construction on registered architects (also “registered surveyors”, but of whom there are only about 150 in Ireland compared with 2500 architects, and “chartered engineers”, but most of whom work entirely outside the construction sector);

•In return requires those architects to certify (not “give as their opinion”) that everything designed and built complies in every detail with the building regulations, and places the architect between the house buyer and the builder;

•Excludes experienced competent architectural technologists from earning a livelihood in this field any longer;

•By requiring a competent builder to be appointed, closes down the centuries old tradition of “self-build” in rural areas – a tradition still flourishing in well-regulated countries such as the United Kingdom and Sweden;

•Does nothing for a new house buyer except set up a paper trail for them to follow in the event of building failure;

•Distances the local authority building control inspectors from the practicalities of the entire process;

•Exposes valuable intellectual property to internet theft (Foreign Direct Investment projects);

•Introduces two key gateways to every project: a Commencement Certificate and a Completion Certificate, to be signed by the architect but which the local authority can reject as invalid, putting the opening of new projects at significant risk

.. and more.

The RIAI, which alongside other construction sector stakeholders negotiated in secret with the Government on these regulations (a negotiating process in which no non-construction sector interests such as the National Consumer Association, the Competition Authority or IDA Ireland participated, and with the results we now see) at first welcomed these regulations. Since then, last January, the RIAI Council resolved unanimously that “self-certification, such as in these regulations, does not adequately protect the consumer” and called on the Government to defer their implementation. But that resolution merely reflected our adoption in General Meeting last Autumn, by 500 votes to 8, of the same view.

3. So what should be done with S.I. 9?

S.I. 9 should be scrapped. It impacts unnecessarily on all sectors of construction, as imposes unnecessary cost and complexity of paperwork, and achieves nothing useful except monopoly conferral on a small number of construction sector actors in return for unacceptable levels of liability.

A proper system of independent third-party inspection, by experienced architects and engineers paid for by the developer but licensed by and answerable to the local authority, would achieve better results; would level the field for the self-builders; would allow experienced technologists to participate; would guarantee local authority-backed inspection of 100% of building sites; would solve the intellectual property issues; and could be done for €2m per year.

To see such a system in operation and hear how it succeeds, one need only take the train to Newry or the boat to Holyhead. Such system can and does work, deliver better building, and can cost the State a net nothing, the cost being paid for by the Developer and through increased Commencement Notice fees.

4. What about S.I. 105 and what should be done with it?

S.I. 105 is a short but complex Statutory Instrument. It defers for 12 months the implementation of key aspects of S.I. 9 for educational and healthcare projects. The Minister for the Environment, Community and Local Government has been at pains to explain that the S.I. did not “defer implementation of the BC(A)Rs” – but this is semantics on his part. “When is a deferral not a deferral?”

Deferring S.I. 9 for a year for educational and healthcare projects makes sense, because the working-out of the S.I. has huge implications for the actual construction contracts, design contracts, completion procedures for projects and more. The industry was not ready for SI. 9 because the Minister, as advised by a small group of stakeholders, completely under-estimated the impact the legislation would have on how buildings are designed, procured and built.

It is correct that the entire S.I. 9 should have been deferred. Not just for public sector projects – schools and hospitals, the State looking out for its own interests – but also for the hundreds of private sector projects, small and large alike: shopping centre fit-outs; house extensions over 40 square metres; new office buildings; factory extensions; and more. All these are impacted by S.I., and all are now at large as regards time and delay.

If, next Thursday, you resolve to annul S.I. 105 of 2014, it follows that S.I. 9 “kicks in immediately” for these school and hospital projects also. This may be the effect you intend, and if so, that’s fine. S.I. 9 is such bad law that by making it apply immediately and in full to all school and health care projects, the chances of its total collapse are increased. With the total collapse of S.I. 9, the Government will be forced to sit down again and consult properly with all the legitimate non-construction sector stakeholders listed above, and come up with a better system. This need not take long: the outline is already available.

(A “System of Independent Inspection” is precisely that “better system”. It can be seen in operation in Northern Ireland, and in England and Wales.)

Such a collapse should be seen, not as a defeat for the Government but as a victory for common sense and the democratic process. Indeed if the Minister had received better advice from his officials, none of us would be in this position today. The Minister is doing his best in an impossibly overcrowded agenda. The Seanad will have won that victory for the people.

Not all my colleagues agree that S.I. 105 should be annulled, thereby subjecting immediately all educational and healthcare projects to S.I. 9. Those colleagues say, and they are right, that to do this will cause extensive delay to those projects with effects on construction sector output and employment. (The same effect on schools and hospitals as S.I. 9 will have in coming weeks in all other sectors.) Those colleagues favour, reluctantly, going ahead with S.I. 105 and working to change S.I. 9 in the coming months.

Precisely the dilemma faces you on Thursday as you debate annulling S.I. 105.

5. So how might the Seanad now consider proceeding?

As you are now faced with this impossible choice, you might consider whether your motion might be amended to extend S.I. 105 to cover all categories of buildings except speculative residential.

I do not know whether for you to adopt such an amended resolution is within your power. I am not a lawyer and do not know what your procedures to do this might properly be. I do not know whether this requires a broad rewording of your resolution or a detailed redrafting of the S.I.. I take the liberty of offering both.

“That Seanad Éireann resolves that Statutory Instrument No.105 of 2014 Building Control (Amendment) (No.2) Regulations 2014 be annulled amended to apply to all construction projects except those in the speculative residential sector.”

In detail, this would be done by amending article 4(b) of the S.I.:-

(b) The provisions at paragraph (a) may apply to the following categories of buildings—

(i) buildings intended for use as places of first level, second level or third level education;

(ii) buildings intended for use as hospitals and primary care centres.

(i) all buildings except residential buildings intended for sale prior to first occupation.

6. For this “deferral” to be properly effective

S.I. 105 doesn’t apply to all educational or healthcare buildings – only to those which already have planning permission. A proper deferral would also indicate deletion of article 4(c):-

(c) The provisions at paragraph (a) shall only apply to buildings referred to at paragraph (b) where each of the following circumstances has been fulfilled—

(i) planning permission, where applicable, has been obtained before 1 March 2014;

(ii) contract documents have been signed before 1 November 2014; and

(iii) a valid commencement notice has been lodged with the building control authority no later than 1 March 2015.”

7. The consequences of amending S.I. 105 as herein

For you to adopt such an amended resolution would have the following consequences.

(1) All building design and construction work would remain fully subject to building regulations.

(2) It would bring the effect of S.I. 9 back to cover only those projects for which the Minister wished to achieve better protection for home buyers.

(3) It would remove the problems which the de-facto S.I. 9 certification monopoly creates for self-builders and architectural technologists.

(4) It would allow FDI projects and SME projects, large and small alike, continue under the old system of building regulation which has served those sectors reasonably well for the past 23 years.

(5) Above all, by deferring all projects and not just educational and healthcare, it would allow 12 months for the Minister to reconsider the effects of S.I. 9 and for all interested parties to debate, develop and introduce a better system.

Thank you. I am taking the liberty of sending a copy of this letter to a number of Senators, in .doc format for easy copying. You are free to make whatever use of it or parts of it as you judge in the public interest.

Sincerely yours,

Eoin O Cofaigh

Eoin O Cofaigh FRIAI