Registered surveyor letter to TD’s: BC(A)R SI.9

by Bregs Blog admin team

How-To-Write-Personal-Letters

The following is a personal letter sent by a registered building surveyor (member of the SCSI) sent to his Local TD’s regarding the adverse consequences of Building Regulation (Amendment) Regulation (SI.9 of 2014). As the letter was a personal one we have removed the author’s name.

Re:Building Control Regulations (S.I.9) implemented in 1st March 2014.  

This letter is written in a personal capacity & contents & information contained are of personal opinions only.

I am a Registered Building Surveyor practicing privately in a rural location since 1999 & a very proud member of SCSI.  I oppose to the changes, which the Minister for the Environment has made to the building control regulations (S.I.9) that was implemented on the 1st March 2014.  In the public’s best interest, S.I. 9 should be immediately deferred & immediate consultations with stakeholders should recommence.

The reasons for my opposition I assure you are only the tip of the iceberg & our profession has many other concerns.

1.The remit of S.I 9

Although the Regulations were intended to be limited to just new buildings, extensions greater than 40 sqm & any development requiring a fire certificate, S.I.9 now impact on the majority of most significant buildings, interior fit-out projects, shop front replacements & agricultural developments greater than 200 sqm.

It now clear that S.I 9 has a direct impact to other industries & S.I 9 has not been designed from the outset with this in mind.  Confusion is in place amongst competent professionals to what exactly is & what is not within the remit of S.I 9.  Legal clarification & additional guidelines are urgently required on this matter.

2.Fees 

No professional knows how much work is required. There are no working samples or guideline samples to reference to. I have heard fees quoted of €1000 to €3000 costs from Minister Hogan for the process, however I have also read many times there is well in excess of 100 hours of additional work involved (RIAI estimate 156- 200 hours).

At a recent Seanad debate Minister Hogan has said he is ‘monitoring costs.’ To expect any competent professional to work at a guideline rate of €10 an hour, including Vat and expenses, is unsustainable. I hope he takes the appropriate measures to address this.

Only when working guidelines are published, can professionals & Minister Hogan, be in a competent position to issue guideline prices.  Until then the Minister should cease vilifying my profession , Engineers and Architects in the public arena and cease the accusation s of extortion.

3.Retrospect compliance with Building Control Regulations

S.I.9 has not allowed for retrospective compliance with Building Control Regulations.  Like it or not, it is a fact of life that genuine mistakes will occur. Considering the ever-increasing gray areas within the technical guidance documents, this is now inevitable. S.I.9 requires urgent revision to address these genuine non-compliant cases. To see such a system in operation and see how it succeeds, one need only to look to the UK.

4. Monopoly on building design

S.I 9 confers a de-facto monopoly on building design and inspection of construction on registered Surveyors, Engineers & Architects.  S.I 9 excludes experienced competent Architectural Technologists from earning a livelihood in this field any longer.

My father is a highly experienced and very competent design Technician and this year he is about to hang up his pencil and retire from the profession.  I am personally very lucky that I have had access to such a wealth of advice from such a competent professional.  With a stroke of a pen, S.I 9 now, for no good reason, deems my father (along with many others) a non-competent professional.  I cannot state clearly enough how insulting this elitist legislation is to this to my father  and many other similar professionals working in our building industry.

S.I 9 urgently requires 4th tier revision to acknowledge that Architectural Technologists are competent professionals.

5.Alarming Legal Opinion of S.I 9.    

S.I 9 requires a competent professional to CERTIFY (not “give as their opinion” but guarantee) that everything designed and built complies in every detail with the building regulations, and places the competent professional between the house buyer and the builder.  As no professional can be the master of all trades, Ancillary Certification was introduced to add protection to the professional for works carried out outside his/hers competence. I wish now to bring the following very concerning Legal Opinion to your attention.

At a recent CPD event organised by Commercial Media Group (CMG) Events in Dun Laoghaire on Wednesday 26th March 2014, some very alarming legal opinions were made on professional liability by very well respected & experienced Legal Professionals.

Barrett Chapman, Partner, Contruction Department, McCann Fitzgerald Solicitors:

Certificates “…should have said ‘I am of the opinion…If you certify and the building doesn’t comply, you are liable. There is no doubt about that…” Barrett Chapman stated that the DECLG need to review the word “certify” as it is “an absolute“.

Mr. Chapman gave a very bleak appraisal of the SI.9 certificate wording and said that a professional could certify, quote: “based on last night’s episode of the Simpsons” and it wouldn’t change the fact, that certifiers are offering an absolute (i.e. a guarantee) that a building complies. Despite additions of ‘based on the above’ and ‘using reasonable skill care & diligence’, the “absolute wording is still there“.

If a professional certifies that a building complies with building regulations, and later the building does not comply, the professional has made a “negligent misstatement”. While professionals may be able to avail of a cap for liability under a contract, a contract wording cannot change tort liability to 3rd parties.”

He additionally suggested that certifiers should make sure they have professional indemnity insurance. Regarding advice is to assigned certifiers in light of his presentation, whether to act in the new certifier roles, Barrett offered this advice: “Don’t“.

Fiona Forde, Barrister-at-law, Law Library:

Fiona Forde confirmed Barrett’s bleak assessment. Quote: “Assigned Certifiers will not be able to rely upon ancillary certificates. The courts have already proven this…Joint & Several liability is held on sacredly by the courts…(People will be) unable to put up much of a fight as ancillary or assigned certifiers.” She suggested architects’ P.I. Insurance would continue to be a target.

Both Mr. Chapman’s & Ms. Forde’s presentations are shocking, very alarming & very depressing.  These presentations cannot be ignored.  My reading of this clearly suggests that unless clarified by the Attorney General (or similar) of course, that the attempt to introduce Ancillary Certification to protect the Assigned Certifier has been ill thought out & has completely failed. Reference Post (both quotes):

“Alarming Legal opinion: BC(A)R SI.9”

Assigned Certifiers are clearly responsible & are unacceptably liable for 3rd party Ancillary Certifiers works.  S.I.9 has imposed significant responsibilities on the professional. It is creates unfair risks including criminalisation. Professionals are essentially under duress to work work within these precarious guidelines out of necessity needs.

Unless the Attorney General can address this serious issue & restore confidence in Ancillary Certification, professionals cannot act as an Ancillary Certifier under S.I 9.  If correct, this will have a knock on effect to public works, infrastructure etc. & grind these projects to a halt.

Given the onerous duties imposed by the Design Certificate, it would appear ridiculous to expect a professional to act as an Assigned Certifier.  The insurance back stop we rely upon upon through these Specialist Ancillary Certification is clearly not there or at least is highly questionable.

Alarmingly, it now appears that professionals are currently unnecessarily exposed for claims & court proceedings.  Logically, it is also only a matter of time before professionals becomes uninsurable as we are now sitting ducks against these proceedings.

I ask that the Department of Environment produce urgent clarification from the Attorney General that Ancillary Certification can be legally relied upon as it was intended to do within S.I.9.  Without this clarification, professionals cannot act as an Ancillary Certifier under S.I 9.  If full clarification by the Attorney General does not comprehensively address this issue then S.I.9 requires immediate deferral.

6.Register of Builders

A register of builders is welcome & there can be little argument against it. The Construction Registration Industry (CIF) has proposed very sensible, proactive & workable solutions to introducing a Building Register of Builders.  A €600 (ex VAT) fee however is completely excessive.

I am concerned that there is only one register managed by one private company and in the interest of competition, there should be a minimum of two.  There should be a legal undertaking that should a builder be removed from one register, the same builder would not be allowed onto the other.

I am sure I am open to criticism on this opinion, however what is clear & the point I’m trying to make is that the CIF will have an monopoly on the Building Register and can charge what they like.  This is already happening with a proposed hefty €600 fee (ex VAT).  Other commentators have already noted there is in existence a National Guild of Master Craftsmen with over 7,500 members (annual fee €195) . The minister appears to be conveying competitive advantage on the CIF in recent legislation in this regard. See reference here: “Is CIRI the only register of contractors?

At a recent Seanad debate on 10th April, Minister Hogan stated that he is ‘monitoring costs & will not allow any professional body an easy way to extortion.  I will be monitoring very closely’.  I suggest he starts with the CIF, as it is the intention of the CIF to charge disproportionately a single self employed sole trader the same fee as a large building firm employing many workers.

7.The end of Self-Build

S.I 9 requires a competent builder to be appointed.  The “Certificate of Completion” “must be signed by a Principal or Director of a building company only”. Minister Hogan’s attempt to clarify that self-build is still possible has clearly failed, as intended or not, this wording has banned self building.

Self builders are now faced with increased construction costs of up to 12% to any future dwelling. This equates to a €24,000 Euro construction cost increase to an typical €200,000 house.  Please note 60% of housing projects each year are constructed by direct labour.  I sincerely hope that the Minister is also monitoring these costs very closely.

In a recent Law Society Guidance Note to members, a number of issues are noted concerning the Building Control (Amendment) Regulation (SI.9 of 2014). I attach a copy for your records.

In particular please note the following section

“In the meantime, however, a self-build owner will have to be willing to complete forms as indicated above and to find an architect, engineer or surveyor that is willing to undertake the task of acting as an Assigned Certifier – in most cases for a person with no experience acting as a “builder”. Doing so will clearly increase the risk for the architect, engineer or surveyor and such professionals would be best advised not to undertake such a role in this sort of situation.”

Professionals are now best advised’, under the publication Law Society Gazette issued by the Law Society 1st April 2014, not to undertake a supervision role for self build.  One cannot occur without the other.  If there is no Assigned Certifier, self-build cannot occur.

It would be professional suicide to ignore such an alarming publication issued by the Law Society & this now clearly ends the centuries old tradition of “self-build” in rural areas – a tradition still flourishing in well-regulated countries such as the United Kingdom.  In the UK the Building industry is actively embracing Self-Build & under the 2014 Budget, the British Chancellor announced £150 million sterling to support self-building projects as part of a plan to help resolve the UK’s housing crisis. Yet S.I.9 at a minimum rips the confidence out of the self build industry in Ireland, however in reality clearly bans it.

S.I 9 requires a competent builder to be appointed and has banned self-building. This is reinforced, as the Completion Certificate to be signed by a Competent Builder must be signed by a Director or Principal of a Building Company only.  It is clearly in black & white.  The IAOSB (representative organisation of self-builders) has requested clarification on the status of self-builders directly from the Attorney General reference here. A satisfactory response has not been received. See reference here.

The Minister’s attempt to put an end to the uncertainty of self-build has failed & now has the following options:

Immediate clarification is provided by the Attorney General (or similar) regarding the best advice issued by the Law Society Gazette.

  • Unambiguous details on how S.I 9 permits self-build should be provided with clear instruction on how this is to occur.
  • The Completion Certificate which is to be signed by a Competent Builder must be revised or should include ‘signed by a Director or Principal of a Registered Building Company only or a Self Builder.
  • Publicly announce that self-build is now illegal.

8. Legislation implemented solely in the interest of the Local Authority

S.I 9 does nothing for a new house buyer except set up a paper trail to follow in the event of building failure.

It is certainly Legislation issued not in the interest of the consumer or in the best interest of the building industry as Latent Defects Liability has been ignored.  This legislation, instead, has been implemented solely in the interest of the Local Authority. It distances Local Authority building control inspectors from the practicalities of the entire process.

This is an Irish solution to an Irish problem:- “When there’s a problem with enforcing a law: change it.”

Measures should be immediately put in place at a minimum to ensure a Local Authority backed inspection of 100% of building sites.  If the Minister serious about preventing another Priory Hall he has no choice but to adopt this procedure.

9.Self Regulation & Self Certification

S.I.9 embraces Self Regulation & Self Certification – one of the core reasons for the Priory Hall disaster. S.I.9 allows a builder to employ an in-house Assigned Certifier. It has not even addressed a basic logical concept that the Certifier & Builder should be completely independent of each other.

It should be noted that In January the RIAI Council resolved unanimously “self-certification, such as in these regulations, does not adequately protect the consumer” and called on the Government to defer the implementation of S.I 9.  Please note that the RIAI was one of the anchor stakeholders who negotiated S.I 9.

The RIAI wrote to Minister Hogan & Bruton in January requesting deferral of the regulations.  I attach letters to ministers along with the Ministers subsequent refusal. To prevent Priory Halls in the future Self Regulation & Self Certification must end.  This will require the complete abandonment of S.I 9.

10.S.I.105 undermined any remaining confidence of S.I 9

Recently shortcomings & lack of foresight forced an amendment to S.I .9 through the introduction of S.I.105.

S.I.105 is a short but complex Statutory Instrument that 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?”

This amendment now has completely undermined any confidence of S.I 9 & most professionals are now expecting further amendments.

11.Bigger Picture

This entire matter has raised a bigger picture.  If a businessperson intended to open up a small business – such as a coffee shop, the following is required.

  • Planning Permission
  • Fire Cert
  • Disabled Access Certificate
  • Dispensation application for the DAC
  • A preliminary Health & Safety Plan
  • Hire a PSCP
  • Hire a PSCS
  • Apply for Building Control Approval

This is all required prior to the fit out.

Prior to the implementation of S.I.9 we were at a tipping point however the new Building Control Regulations will now choke the life out of Small Business.

This is bureaucratic madness and is complicating, an already complicated process. This entire approach to our industry requires an immediate debate regards a far more simplistic system & approach.  It should start with the simplification of S.I.9.

11. And the rest …….  

A recommended solution to resolve the problems with S.I.9.

Revoke S.I.9 

S.I. 9 should be immediately revoked and immediate consultations with stakeholders should recommence to provide a far more simple system.  It is incomprehensible why such a complicated bureaucratic and untried system was introduced in the first place.  This is required as S.I.9 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.

Deferring S.I.9 for a year or two makes sense & can be deferred by introducing a new Statutory Instrument in the same manner as S.I.105 was introduced to deferred hospital and school projects from S.I.9. The industry is clearly not ready for S.I.9, as the Minister completely under-estimated the impact the legislation would have on how buildings are designed, procured and built.  A deferral will allow debate, development and the introduction of a better system, a system everybody will have confidence in & understand.

A proper system of independent third-party inspection

A proper system of independent third-party inspection, by experienced 4 tier professionals, independent to the developer & licensed by, answerable to, the local authority, would achieve better results. This would level the field for the self-builders, allow experienced competent technologists to participate and guarantee local authority-backed inspection of 100% of building sites.  To see such a system in operation and see how it succeeds, one need only to look to the UK.  The blueprint is already available within the “System of Independent Inspection” in operation in Northern Ireland, England and Wales.  Such system can and does work & it delivers better building.  This system can be carried out here at minimal or no costs by simply increasing the Commencement Notice fee.

The Assigned Certifier & Contractor should be separate. I cannot emphasise how important this is.  This clearly removes any conflict of Interest or any possibility of undue influence by an unscrupulous Building Contractor.

Introduce a Defect Liability period 

A Defect Liability period should be introduced (this is part of a standard building contract currently).  When a building is ready for occupation, the competent professional can issue a Certificate of Practical Completion & a sum of money is retained. This retention fund can be retained for the duration of the defects liability period, which would be a minimum of one year.  Any defects that manifest after the building is occupied can be rectified by the Contractor or if necessary by the retention fund.  After the Defect Liability period is complete, a Final (non qualified) Certificate of Compliance is issued.  This suggestion may sound complicated however this system is a lot less complicated than the 27 pages bureaucratic Code of Practice accompanying S.I.9, I assure you that.

Should deferral of S.I 9 be rejected ?

On a broader basis should the many calls made for the deferral of S.I.9 be rejected, it is a clear statement that the Ministers full intention to ensure Enforcement of the Building Control Regulations will be by Self-Certification and will be independent of the Local Authority.  Should a defect occur to the building, the sole resolution as every one knows now will be via the courts as a Latent Defect process will not be in place.

As professionals & builders cannot reply upon Ancillary Certification, I cannot see then where the bureaucracy of the Code of Practice & S.I.9 fits into all this.

I suggest a very simple solution.  Remove the entire bureaucratic process and request both the competent professional/ competent contractor to sign a non-qualified certificate of compliance.  Best advise should be issues that Ancillary Certification can be obtained privately by both the professional & builder should the choose so.  This certificate of compliance & ancillary certificate can be produced and agreed by the Attorney General and/or Law Society.

The end result is the exact same, as the certification signed by both the professionals and builder will protect the owner. The responsibility of who created the default can be scrapped out in court in the same manner as it will under the current S.I.9 system.

Our profession are sitting ducks anyway.  This suggested system will make a quick & simple death for us, however the current S.I.9 system makes a slow & painful one.

Should the deferral of S.I 9 be rejected the minimum legal clarification is required  

Restore Confidence in Self Building

At the very beginning it must be remembered that if all the stakeholders been given clear instructions to find a way to attempt or just to ban self-building, you can be sure most stakeholders would have left the negotiating table there & then. I believe we have lost sight of this.

At a minimum S.I.9 has destroyed any confidence in the legality of self build. Confidence needs to be restored to Self-build buy providing clarification from the Attorney General (or Law Society) on how exactly Self Building in Ireland can be re-established. Superficial  and contradictory statements from the Minister and the Department have not and will not restore this confidence.

Let the Attorney General provide clarification or Minister Hogan must announce the end of Self-build.

There is only one thing worse than knowing & that is not knowing.

Restore Confidence in Ancillary Certification 

Unless clarified by the Attorney General (or similar), the attempt to introduce Ancillary Certification to protect the Assigned Certifier has been ill thought out & has failed.  Assigned Certifiers are now clearly responsible and are unacceptably liable for 3rd party Ancillary Certifiers works. Professionals are now best advised not to act as an Ancillary Certifier until S.I 9 is amended.  The advice issued by many accomplished Legal professionals echoing the same has destroyed any confidence in the ability of ancillary certification under S.I.9 to provide protection to Assigned Certifiers.

To restore this confidence clarification by the Attorney General (or similar) that S.I 9 certification process adequately protects Assigned Certifiers as it is intended to do.

Provide working samples & guidelines

No professional knows how much work is required.  There are no working samples or guideline samples to reference to.  Only when working guidelines are published, can professionals & Minister Hogan, be in a competent position to issue guideline prices & visualize the works that are involved to provide a professional & competent.

Recommence immediate consultations

A commitment by Minister Hogan should be made to recommence immediate consultations with stakeholders to try & iron out as many faults in S.I.9 as possible & to make the system far more simplistic to match that of the €1,000 to €3,000 cost guidelines he envisaged.

 

The final word

A collapse or amendment of S.I 9 can only be imminent.  This can occur in an embarrassing fashion for the Minister, or he can announce it on his own terms. It is clear that the Minister has completely underestimated S.I.9 when he signed & implemented it.  This instrument has been amended once under S.I.105 & it would be a shambles to have it revised again. Many industry commentators expect further part-deferrals in the near future.

If the matters raised are not addressed eventually the Government will be forced sit down and consult properly with all the legitimate consumer groups stakeholders such as the National Consumer Association & the Competition Authority  to determine a better system.   If this occurs, confidence will further eroded in this Government and rest assured the Minister will be the one person missing from the negotiation table.

I thank you for taking the time out to read my letter.

You are free to make whatever use of it or parts of it as you judge in the public interest & I urge you to make strong representations to Minister Hogan on this matter.

Sincerely yours,

 

 

 

Advertisements