BRegs Blog

A blog to debate the Building Control (Amendment) Regulations (BCAR): The BRegs Blog presents an opportunity for free expression of opinion on BCAR and their implementation. The blog is not representative of any professional body or organisation. Each post represents the personal opinion of that contributor and does not purport to represent the views of all contributors.

Month: April, 2014

49,413 views…and counting

by Bregs Blog admin team

50k-likes

Dont forget: in celebration of our upcoming milestone of 50,000 views we are currently running short quiz (thanks to Deirdre Ni Fhloinn for idea!). Here we have an extract from a Law Reform Commission working paper. It has details of a proposal for compulsory registration of Irish building contractors: can you guess the year that this paper dates from? Spot-prize for winner. Extract :

Details of the scheme have not yet been worked out but its main features have been described by a statement from the Government Information Services in the following language:

“Broadly, the agreed scheme provides for the establishment of a body by the Construction Industry Federation for a registration of house builders who are competent, technically and financially, to undertake house building. The purchaser of a house built by a registered house builder will receive a six year guarantee from the builder, which will be backed by the registering body. Every guaranteed house will be inspected by technical officers of the Department of Local Government (or, where appropriate, of Roinn na Gaeltachta) on at least three occasions (foundation, roofing and completion stages) and registered builders will be required to remedy any structural defects then observed. If a builder fails to remedy the defects, his name may be removed from the register and the purchaser will be compensated. A system of conciliation and arbitration will be established to resolve any disputes arising under the scheme. Two observers from the Department of Local Government will attend meetings of the guaranteeing body and the expenses of that body will be met by a small levy (about 1/4 of 1% of the purchase price of the guaranteed house). It is intended to enable builders who are not members of the Federation to be associated with the guarantee scheme.”

(hint: it was the same year the sex pistols were dropped by EMI, SO NOT 2011…)

Answers by email to bregsforum@gmail.com

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Is CIRI the only register of contractors? BC(A)R SI.9

by bregs blog admin team

tools It will be interesting to see if the National Guild of Master Craftsmen have made any representations to Minister Hogan regarding the Construction Industry Federation’s (CIF) private register of contractors CIRI. The Guild is a well-established membership organisation (7,500 members) with it’s own register of competent tradespersons and contractors.

The recently established CIF register CIRI is currently the subject of a complaint by the representative body for self-builders (IAOSB) to the european ombudsman (see post here). The IAOSB have complained that the register is a restrictive practice endorsed by government. The CIF own and operate CIRI. It is also the subject of an individual complaint by self-builder Amanda Gallagher to the Competition Authority. See post here. Homebond of course has also launched a competing register of contractors but is not endorsed by Government (Link here).

CIRI is the only contractor register endorsed by government and has been written into law in the Building Control (Amendment) Regulation (SI.9 of 2014). We believe from a recent CPD in DunLaoghaire that CIRI has had 450 applications by persons/companies to join to date. Two meetings of small building contractors have recently been organised in Co. Wicklow and Co. Kildare to protest the CIF register.

Link to CIRI: CIRI: construction industry register ireland

Quote from CIRI website: “This is the register which you may have heard the Minister for Environment, Community and Local Government Phil Hogan TD and other members of the Government refer to in recent months. CIRI will operate on a voluntary basis initially but the Government has said they will look to put it on a statutory footing next year. CIRI is being set up to try to distinguish legitimate construction companies/ sole traders from those who have given the industry a bad name. At the moment anyone can pass themselves off as a builder or construction operative. There is nothing to stop anyone, regardless of their skills or qualifications from looking to secure construction work.  CIRI will provide a mechanism to the public to distinguish between the credentials of registered construction practitioners from those not on the register.  It will highlight those who follow best practice. CIRI should not be confused with any other registers you may hear about. CIRI is the only construction register that is being supported by the Government.

The National Guild of Master Craftsmen have a well-established register of master craftsmen. This organisation has 7,500 members. One would wonder as to the viability of this Guild when the government’s preferred register is the one owned and operated by the CIF. It will be interesting to see if the Guild will lodge their own complaint against the CIF, CIRI, the Minister and Department. It would seem remarkable that the Department and Minister would give competitive advantage, written into law to a CIF register recently established, at the expense of another organisation that would appear to have a proven track-record and a well-established/ respected register of competent tradesmen and contractors.

We believe the Guild’s registration fee is less than half that of CIRI at €295 per annum (year one), reducing to €195 for each year after.

Here is a link to the National Guild of Master Craftsmen: National Guild of Master Craftsmen

Extract off the Guild’s website:

About: 

The National Guild of Master Craftsmen is the largest organisation representing skilled and accredited tradesmen and builders. Its aims are to protect the skills and integrity of its members and clearly define the skilled from the non-skilled thus enabling the general public to choose a National Guild of Master Craftsmen member to facilitate the service they require. The National Guild of Master Craftsmen has over 7500 members nationwide. With this membership the Guild has the ability to negotiate bulk buying power on group discounts.

Aims:

1) To assist all members, particularly the self-employed and to protect them against the growing menace and the devaluing and damaging activities of the unskilled, against bureaucratic discrimination, against penal taxation and adverse legislation. Equally, to protect the public by instilling among members a greater sense of responsibility, making members aware of the national importance of the services they render, monitoring these standards to ensure that the Guild’s high standards are being maintained, and by encouraging members always to strive for excellence.

(2) To encourage an interchange of views among members, to endeavour to unite these views and bring them to the attention of the Government and local authorities in order to safeguard the livelihood and welfare of the members and their dependants.

(3) To BRING TOGETHER ALL SKILLED PEOPLE engaged in a craft, art, trade profession or vocation in order to safeguard the interests of craftsmen and the public.

(4) To publicise these high standards through the national and local media, thus creating public awareness of the ideals and aims of the Guild and its members.

(5) To ensure that the minimum qualifications for membership preserve the high standards of the Guild by excluding the unskilled.

(6) To promote to the public the trading assets of the members, their honour, professional expertise and integrity, their high standards and the value for money which they offer.

(7) To constitute a pressure group to seek the support of one or more Members of Dail Eireann to make sure that someone speaks up for the interests of the Guild members where it matters most.

(8) To provide clear identification and recognition for members so as to enable the public to distinguish them from the unskilled who pass themselves off as craftsmen and so increasingly to attract and direct work to members of the Guild.

(9) To foster learning among the apprentices and students in order to perpetuate the survival and success of their particular craft.

(10) To promote sponsorship of the Guild by persons, firms and organisations whether by financial support, by endorsement of the activities of the Guild or by patronage.

(11) To promote research within the craft, trade, art, profession or vocation in which members are engaged, for their own benefit and that of the public

Maintenance of Standards:

One of the Guild’s principle objectives is to preserve high standards. For it is the quality of members’ work which achieves public recognition, and the consequent reputation for quality which attracts extra business for all members. The symbol of the Guild’s reputation for quality is the Guild logo.

Unsuitable applicants, identified by the Guild’s strict vetting procedures, are automatically denied membership. Existing members, who allow their standards to fall, resulting in verified complaints from their customers, are refused permission to continue membership. In this way the Guild plays its part in maintaining the quality standards which protect those who are genuinely working with skill and integrity. Membership of the Guild can be the most important asset in many businesses.

It would cost a considerable amount of money for any company to build a comparable reputation for quality with such a strong corporate identification. In the eyes of prospective customers, any new member is automatically identified with long-standing members who have already shown their determination to provide quality products and services. This gives reassurance to prospective customers deciding where to place their next order. It also places an obligation on the new member to live up to high standards. You will be helping yourself by helping us to maintain these high standards at all times

Services and Benefits:

  • Insurance Services– Members are entitled to avail of the Tradesmen Insurance Group’s services, our inhouse insurance brokerage group dedicated to all members of the national guild.
  • Private Health Care– Discounts on Private Health Care plans for members of the National Guild of Master Craftsmen, with V.H.I.
  • Legal Advice Service– Free Legal advice available from the Guild’s list of appointed professionals.
  • Mediation Service- The Guilds Mediation Services available to members can help to avoid costly legal proceedings.
  • Debt Collection & Credit Vetting– In response to the demand from our members we have established Guild Money Recovery Services, our own in house debt recovery company, independently staffed with solicitors, door step callers and telephone personnel.
  • Printing– Substantial Discounts are available to members from the appointed list of Guild’s printers.
  • Safety Statements– A complete range of Professional Health & Safety Risk Management Services- Nationwide.
  • Vehicle Fleet Discounts– Available to Guild Members on the purchase of Ford, Opel, Ssang Yong, Volkswagon and Toyota vehicles – conditions apply.
  • Public Recognition– Membership of the National Guild of Master Craftsmen is recognition of Quality & Service and the Certificate is a valuable trading asset.
  • Letter of Recommendation Service– The Guild provides a highly valuable service for its members by way of a letter of recommendation service to enable further business opportunities.
  • The Guild Logo– The Guild Logo identifies to the public the quality and skills of the member.
  • Register of Members– Computerised list of members to enable us to identify for the public and other members the quality of skills and services offered.

joining: For information on applying to the National Guild of Master Craftsmen, contact Kathleen Carroll, Lo-Call,1890 20 70 50 or email info@nationalguild.ie with your contact details.

Dáil: Why not an independent inspection system?

by Bregs Blog admin team

invest

In the following exchange Stephen Donnelly asks the Minister if his Department had considered introducing a system of independent inspection of design and construction, such as can be seen operating in England and Wales, to be self-funded and at no cost to the tax payer. This question will be of interest today, day 2 of the Irish Building Control Institute conference in Sligo.

The Minister’s answer is pretty simple:

A move to a full local authority approval system (even one which allowed for the involvement of private sector operators) along the lines of the England and Wales model or otherwise would involve significant increase in building control staffing and resourcing and would be difficult to contemplate in the present economic environment.

So, no extra staff wanted. We have previously discusses such a system from a number of angles: see post here. We noted the cost for the slight increase in staffing would be self-funded at no cost to the taxpayer. Such as system would improve our world bank rankings and give consumers the confidence of 100% independent inspections by third party experienced architects, engineers and technologists on a registered basis with local authority enforcement backing. A procative system which would go some way to preventing building failures. This would cost the State next to nothing and is attainable with little legislative change. Such a system is on offer already in England and in Northern ireland.

Instead we have continued the defective system of light-touch self-certification that gave us recent high-profile building failures. Consumers trudging through the courts seeking redress with little guarantee of success. Previously Deirdre Ni Fhloinn, specialist construction lawyer and consultant at Reddy Charlton Solicitors noted “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”. See her post here.

The vast cost of BC(A)R SI.9 to the taxpayer, industry and consumer was discussed also. This estimate was very conservative- agricultural buildings were excluded (agricultural buildings will qualify under SI.9). See previous post here.

So a proposed efficient system of 100% independent inspections, self-funded as suggested by Stephen Donnelly, versus our current defective “self-certification” version that saves the Department re-deploying 200 experienced local authority employees at an annual estimated additonal cost to industry and consumer of €500m (as introduced by Minister Hogan). We wonder.

For March commencement notices have literally “fallen-off a cliff”. Minister Hogan has confirmed only 100 commencement notices were lodged for qualifying works for March 2014. Out of this number we believe only 70 residential commencement notices were lodged for the month- this is an 80% drop from March 2013 levels (March 2013 there were 320 residential commencement notices).

Dáil exchange to follow:

____________________

Question No.   374

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 his Department considered introducing a system of independent inspection of design and construction, such as can be seen operating in England and Wales, to be self-funded and at no cost to the tax payer, which could offer improvements on the self-certification system, notwithstanding the submission to him by the National Consumers Association on the draft regulations in Summer 2012 and the recommendations of the Pyrite Report..

– Stephen S. Donnelly.  

For WRITTEN answer on Tuesday, 1st April, 2014. Ref No: 15218/14

REPLY

Minister for the Environment, Community and Local Government (Mr. P. Hogan) 

 

The Building Control (Amendment) Regulations 2014 which came into operation on 1 March 2014 greatly strengthen the arrangements in place for the control of building activity by requiring greater accountability in relation to compliance with Building Regulations in the form of statutory certification of design and construction, lodgement of compliance documentation, mandatory inspections during construction and validation and registration of certificates.

The new regulations are necessary following the widespread instances of failure by owners, designers and builders to comply with their statutory obligations under the Building Control Act 1990 to design and construct buildings in accordance with the Building Regulations.

The new regulatory approach was preceded by a review by a high level working group, which included representatives of my Department and of local government (nominated by the County and City Managers Association), which reviewed the building control regulatory framework. This review process was informed by awareness of developments in relation to building control generally in other jurisdictions, including in England and Wales.

In broad terms t he building control system in operation in England and Wales can be characterised as a full approval based system whereby local authorities inspect and approve all buildings . Significantly it is understood that a decision to step back from full local authority approval in all cases was implemented in 2005 and since that time the England and Wales systems allow for approval by independent professionals. The cost of full approval by a local authority and the need to optimise the use of Government resources were understood to be key considerations in this change.

A move to a full local authority approval system (even one which allowed for the involvement of private sector operators) along the lines of the England and Wales model or otherwise would involve significant increase in building control staffing and resourcing and would be difficult to contemplate in the present economic environment.

The legal obligation on owners, builders and designers to design and construct in accordance with the Building Regulations would continue to apply . The requirement to demonstrate compliance for approval purposes, whether by a building control authority or an approved independent operator, w ould mean that the person who owns or commissions the work would necessarily incur the requisite design, building and inspection/certification costs , over and above the administrative charge required to cover the approval fee payable to the local building control authority or approved operator.

 

Questions unanswered by Minister Hogan: BC(A)R SI.9

by Bregs Blog admin team

PPF-Hogan & Taoiseach

In the following letter send on 1st April 2014 to Minister Hogan and Taoiseach End Kenny self-builder Amanda Gallagher reiterates the concerns of self-builders with Building Control (Amendment) Regulation (SI.9 of 2014). Minister Hogan has confirmed only 100 commencement notices lodged for march 2014. Approximately 70 residential commencement notices only- this is an 80% drop from March 2013 levels (March 2013 there were 320 residential commencement notices).

Re: Self Build Queries that still require answers!

Dear Minister,

I wrote to you on Thursday last and as of yet you have not acknowledged my letter.  Maybe you didn’t understand how urgent those questions were, therefore I want to draw your attention to a couple of issues that have yet to be resolved by you regarding self building in Ireland under SI 9.

I have been told that your Department have informed Building Control Offices around the country that the SI 9 is part of a European Directive – what nonsense.  Every country in the world, USA, UK, Australia,South Africa, all of Europe even North Korea and the Developing World allow self builds! Some of these countries have strict Building Control laws – but these accommodate the self build situation.

Ireland is now THE ONLY country now to ban self building a family home – does An Taoiseach know that we have become an International Joke? Who wants to do business with a Dictatorship?  Any fool can see that SI 9 protects nobody, it will not stop another Priory Hall situation – all it does is line the pockets of the CIF, building contractors and generate Revenue for you – this is unbelievable.

Now I know that you are ‘telling’ the Nation that ‘self build / direct labour can continue as before under SI 9’.  If this is indeed factual, as you claim it to be, then I’m going to ask some questions to you once more, in simple terms:

  • Why have you made NO PROVISION for the self builder to sign the Certificates of Compliance & Completion? – you have only made a place for the signature of a principal or director of a building company only. Surely you don’t expect a PAYE worker to sign these Certificates?  Is this not fraud? A self builder in Ireland today cannot possibly proceed with their planned build until such time as they are included in the Law of the Land.
  • In light of this first question – are you now going to amend these certificates to include the words ‘self builder‘? If not, can I ask you the reason why you will not amend them? It would not be such a big deal to do – surely you have the staff there at the Department to rectify these Certificates immediately? – By the way, not the person who typed up the LocalGov.ie Guidelines for the BC(A)R 2014 – as they made a complete blunder with points 11 & 12! – that was more than ‘typo’ – that was absolutely ridiculous.
  • Why do the words ‘self build ‘ or ‘direct labor’ not appear at all in the SI 9 themselves or the Code of Practice for Building Control.

Now Minister, the next issue I have is with the Assigned Certifier under SI 9.  You seem to have burdened the Assigned Certifier with an enormous weight of responsibility – in light of this a person who intends to ‘self build’ in Ireland today will not find an Assigned Certifier to work alongside them and even if they did find one it would add an extortionate amount of professional fees on to their budget – fees that they never envisaged – and would therefore put them so far over budget that they will abandon their planned build totally.  This is in no way the fault of the Assigned Certifier – you have forced them to reject potential clients because it would be too risky to their livelihoods.  I believe their workload has increased tremendously with the implementation of these Regulations and I believe many architects – those great ‘artists of buildings’ never imagined that you would ‘morph’ them into Building Inspectors.  There is a better solution to this burden you have placed on them. If you click the link below you will see how easy this would be for you to implement:

https://bregsforum.wordpress.com/2014/03/18/2423/

I don’t know why you would punish the self builder, the Architects (not with RIAI), the Architectural Technologists, the Draughtsmen, the Assigned Certifiers, the Farmers, the SMEs, the Tradesmen, the local Builders Merchants and the children of the future for the mistakes of the ‘cowboys of the Celtic Tiger’ – and to think it is so simple for you to revoke SI 9 and implement an Independent List of Approved Inspectors that would remedy the self build issue – why you refuse to do this defies logic.

You know there is an inherent human desire – a human right – to provide a home for one’s family. The birds in the air search until they find a suitable ‘site’ where they construct a most intricate, beautiful, perfect ‘home’ for their young. It is a natural instinct in us all.

For you, to take away this right from the Citizens of this country is a most serious, grave mistake.  Would Minister Quinn remove the right to an Education from the children of this country just because he couldn’t manage to put together a proper School Inspectorate?  Not at all – it would be an outrage and would not be tolerated. I am afraid Minister Quinn  is an educated man and would not be so brazen or so flippant to the Citizens he was elected to protect.  This is exactly what you have done to the self builder in Ireland – and this will not be tolerated either.  It is not our fault you and your officials can’t ‘pull your socks up’ and put an Independent Inspectorate together – this is why you are a Minister – show the Nation that you are ‘competent’ and sort it out.

You have put building a home so far out of many self builders’ reach – they couldn’t even begin to try to find the money for their project.  Not only have you taken the dream of building a home away from many citizens in this nation – you have also taken the possibility of realising their dreams from them – what will life be like for them now?  How can you think it is okay to burden people with an enormous mortgage when it is not necessary – has not the current state of the nation taught you nothing about the dangers of debt?

I must take this opportunity to point out to you that there is no difference whatsoever in a self builder and a building contractor – we both study the plans, shop around for materials, employ some trades, listen to the advice of the professionals – the only difference the building contractor gains a hefty profit and puts a lot less ‘love’ into the build.

Yourself and the CIF continually bang the ‘competence’ drum.  You are ‘hell bent’ on putting the CIRI on a statutory footing next March.  You have made a provision on the SI 9 Certificates for the ‘builder’ to state his CIRI number even though you claim that it is not mandatory to do so – if this is the case then why put it there? Why ‘highlight’ CIRI? We are done with the days of ‘cronyism’ Minister – this is modern Ireland.  By the way, ‘competent’ is too flimsy a word to use in relation to construction, I want a ‘competent’ person to make my cappuccino in a cafe, I want a ‘competent’ person to serve me in a shop but when I am looking to construct a home worth hundreds of thousands of euro, a home that will be passed on to the future generation, the word I would be looking for would be a more robust word like ‘qualified’. You must stop all this nonsense about competence – a building contractor may not know a hammer from a nail – he may be merely a business man – there is no proof he can show that would guarantee his competence – the real ‘builders’ of houses, apartments, hotels etc are ‘Qualified Tradesmen’ – these men (and women) can indeed prove they are competent as they have a qualification that tells me so.

On the FAQ section of CIRI it states ‘This is THE ONLY register being supported by the Government’ – Minister, I don’t know if you are aware of it but we already have a Register of ‘competent’ Builders and Tradesmen – they are called the National Guild of Master Craftsmen – what is wrong with them?  They are only 295 euro to register with – compared with 738 euro to join CIRI.  We are in a recession Minister so I think you should have a word with the CIF regarding their pricing structure.

For the Certificates within SI 9 to show only a provision for CIRI is most unfair to the National Guild members as it should have a provision for their registered number also – you can’t ‘advertise’ CIRI on these certificates and omit to mention the National Guild.  You are going to have to amend these Certificates to include them asap.

I don’t know why the CIF state ‘CIRI is THE ONLY Register being supported by the Government’ – this is very snobbish – why don’t you ‘support’ the National Guild of Master Craftsmen – are they not good enough to be included on the Certificates? Are they like the Architectural Technologists, the Draughtsmen, the Architects not on RIAI register – those people that are not good enough to become Assigned Certifiers? Are they like the self builder – just not good enough to construct their own homes – even though they do exactly the same thing as the building contractor – the self builder also who is not good enough to be included on the Certificates or in the Code of Practice?  This snobbery will not be tolerated either.

In the light of the fact that you are adamant that self build can continue in Ireland as before – and for the Nation to actually believe what you are ‘saying’ I think the best thing for you to do is revoke SI 9, implement the alternative solution that has been handed to you and also put up some information on the environ.ie website for the general public to view regarding self building in Ireland.  I have put the following link up to give you some ideas as to how it should look:

http://www.buildingcommission.com.au/ownerbuilder

By the way Minister, before you shred all your copies of SI 9 keep one aside so that it can be placed in a glass case in the National Museum for the future generations to view the nonsense that their ancestors had to endure in 2014.

It is very fitting that today is April Fools Day, as you continue to make fools of the Citizens of this country by implementing a scandalous sham – the SI 9.  You parade it to the nation wearing the ‘mask’ of a bright new dawn in building control, meanwhile in reality there are no changes whatsoever in the regulations regarding controlling ‘cowboys’.  When one peels back that ‘mask’ one clearly sees  the same wake of vultures hungry for ‘a piece of meat’ from the poor men and women that they swooped down on in the last decade.  I do believe the nation will not be ‘fooled’ for much longer and when the truth finally surfaces and the Irish people realise that they can no longer self build or use direct labour to construct their family homes it will be you, Sir, and your friends in the CIF who will be the Fools!

Regards to you at this most difficult time in Building Control and looking forward to your answers to my queries – I am sure there is someone in your Department who is ‘competent’ to answer them.

Mrs. Amanda Gallagher

Co. Sligo

Irish Building Control Institute today: BC(A)R SI.9

by Bregs Blog admin team

PrioryHallOct2011COLLINS_large

Today, 2nd April, is the first day of the Irish Building Control Institute conference in Sligo. We ask will SI.9 fix the construction industry? Can a reinforced system of self-certification work? Do we really need more self-certification, more of the same? How can the same system, with the same resources, stop another Priory Hall?

Here is an Irish Independent article from 11 months ago, 23rd April 2013. In this article Paul Melia discusses the lack of adequate independent inspections throughout the country. Quote: “Eight in every 10 houses and apartments built every year are not being checked for structural defects and possible breaches of the fire safety code, the Irish Independent has learned.”

Link to article: Eight in Ten Homes are never inspected for defects despite Priory Hall debacle

We wonder, given the lack of additional resources allocated to local authorities and inadequate Departmental guidance on Building Control (Amendment) Regulation (SI.9 of 2014) will anything be different now? In yesterday’s post we suggested that overworked and chronically under-resourced building control sections throughout the country needed help: see previous post here.

We wonder will any self-builders attend, and if so will they get any answers to their questions? Will Department representative Aidan O’Connor answer why contradictory and conflicting guidance on self-building has been issued to date? Will the construction industry federation (CIF) representative Hubert Fitzpatrick answer the questions asked by the representative body for self-builders (IAOSB) to the European Ombudsman (See post on this here)? Will Hubert Fitzpatrick or Aidan O’Connor be able to answer questions by Amanda Gallagher on behalf of self-builders to the Competition Authority regarding the restrictive nature of the privately owned and operated register of contractors CIRI (see post here) which is endorsed by the Department and the Government?

Perhaps someone from the audience can ask why the Building Regulation Advisory Body (BRAB) was disbanded in mid-2012 by Minister Hogan? Is it true, as we are led to believe, that BRAB was never re-convened after a May meeting where members were very critical of the proposed building regulation amendment (see post here)? Were minutes ever circulated of this meeting, and if not, why not? So many questions, so little time.

Given some BC(A)R SI.9 critics will be speaking at the conference over the next two days, we wonder will any conclusions be reached as to the current and likely performance of the new system? Commentators such as Barrett Chapman (Solicitor & Partner, McCann Fitzgerald) have been very critical, for example, of the wording and legal liability (for professionals) of BC(A)R SI.9. In a previous post Deirdre Ni Fhloinn, specialist construction lawyer and consultant at Reddy Charlton Solicitors noted “There are no new legal rights or remedies for consumers created by BCAR 2014” See here legal perspective article here. We wonder if anyone will examine the new regulations from the perspective of the consumer, the one group excluded from stakeholder meetings post 2012.

The conference could be very interesting. If anyone is in attendance they might tweet interesting points and information to us here. Speakers at the Irish Building Control Institute conference on 2nd and 3rd April 2014:

  • Aidan O’Connor, Principal Advisor, Architecture & Building Standards Sections in the Housing and Planning Division of the Department of the Environment, Community and Local Government
  • Mairead Phelan, Chartered Engineer, Senior Engineer, Building Inspectorate Division, Fingal County Council and Building Control Project Manager
  • Rhoda Kerins, Project Manager in the LGMA overseeing the Open Source Practice Centre
  • Kevin Sheridan, Chartered Building Surveyor, Building Manager and Project Manager
  • Paul Kelly, Architect, Member of RIAI Building Control Oversight Group
  • Maria Melia, Chief Fire Officer, Wexford County Council, former CFOA member of BRAB
  • Bernadette McArdle, Chartered Engineer and Building Control Officer for Louth County Council
  • Barrett Chapman, Partner, McCann Fitzgerald, Construction Group – construction law, advising developers, contractors and consultants
  • Hubert Fitzpatrick, Director, Construction Industry Federation, responsible for Eastern region
  • John Sweeney. Building Control Officer for Meath County Council

________

Extract from Independent Article:

Eight in 10 new homes are never inspected for defects despite Priory Hall debacle

THOUSANDS of new homes have not been inspected by local authorities despite the fallout from the Priory Hall scandal.

Eight in every 10 houses and apartments built every year are not being checked for structural defects and possible breaches of the fire safety code, the Irish Independent has learned.

And the number of homes being inspected is steadily falling, resulting in properties being sold to an unsuspecting public without basic checks being carried out.

The drop is despite shoddy building work resulting in hundreds of residents of Priory Hall, a north Dublin estate, being evacuated from their homes more than 18 months ago because they were fire traps.

New figures show that not one house or apartment was inspected in Co Galway or north Tipperary in 2011, the most recent year for which figures are available, because there was no building control officer.

Another county, Roscommmon, said its officer was on “long-term” absence, meaning that few homes could be inspected.

City and county councils are supposed to carry out random inspections of new buildings but a lack of staff and financial pressures means that just under 22pc of new homes are examined.

A report comparing the performance of each local authority during 2011 shows that inspection rates range from none to more than half of all new buildings.

The ‘Service Indicators in Local Authorities’ report shows:

• Just one in five new homes was inspected in 2011, a drop from 2009 when one in three was examined.

• None were inspected by Galway County Council and North Tipperary County Council.

• Other poor performers include Donegal (8pc of the total), Fingal (9.97pc) and Waterford City (10.61pc).

• Most inspections were carried out in South Tipperary (66pc), followed by Carlow (55pc), Kerry (44pc), Meath (38pc) and Kildare (35pc).

• Some 9,295 private houses were constructed in 2011. The figures show that 7,251 were not checked.

Developers of shoddy buildings face being jailed for two years under building regulations being introduced from next March.

The regulations are aimed at avoiding the mistakes of the housing boom where poorly constructed homes, pyrite damage and structures breaching fire regulations left thousands of homeowners out of pocket and at risk of death or serious injury.

Under the old rules, a builder nominated a person to sign off on construction of new dwellings based on their opinion, and often without visiting the site during construction.

It meant that the building regulations were, effectively, based on an honour system where it was assumed homes would be properly constructed. In 2006, just one in four homes was checked to see if it conformed to regulations.

Many homeowners have since learned, to their misfortune, that this was far from the reality.

From next March, “assigned certifiers” – who can be registered architects, engineers or building surveyors – will inspect building works at key stages during construction.

The assigned certifier and the builder will both have to certify that a finished building complies with regulations, or risk prosecution.

Environment Minister Phil Hogan said there would be an increase in the number of building inspectors in local authorities from next year.

“We will be adopting a code of practice this year to set out clearly what the responsibilities are for the professionals and local authorities,” he said.

Breg Blog : coming up to 50,000 views!

by Bregs Blog admin team

In case anyone missed it we’re running a BREG BLOG quiz to celebrate our upcoming milestone of 50,000 views (currently we’re at 48.5k). There are 2 prizes: first is an autographed copy of “Iggy Peck, Architect”. 30 pages, Written in rhyming quatrains.Colour illustrations. Full of wisdom and wit should be essential reading for anyone attempting to undertake roles of assigned or assigned certifier. Signed by Michael Collins and Eoin O’Cofaigh. Winners to be announced on Friday.

BRegs Blog

50k-likes

In celebration of our upcoming milestone of 50,000 views, we will go more lighthearted for the weekend and have a short quiz (thanks to Deirdre Ni Fhloinn for idea!). Here we have an extract from a Law Reform Commission working paper. It has details of a proposal for compulsory registration of Irish building contractors: can you guess the year that this paper dates from? Spot-prize for winner. Extract :

Details of the scheme have not yet been worked out but its main features have been described by a statement from the Government Information Services in the following language:

“Broadly, the agreed scheme provides for the establishment of a body by the Construction Industry Federation for a registration of house builders who are competent, technically and financially, to undertake house building. The purchaser of a house built by a registered house builder will receive a six year guarantee from the builder, which…

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FDI (Foreign Direct Investment) Projects & BC(A)R SI.9

by Bregs Blog admin team

FDI-investment

In our recent post “Building Control Officers need help! BC(A)R SI.9” we noted “The impact of SI.9 was alarming enough for Minister Ruairi Quinn to insist on a part-deferral for healthcare and school projects. The FDI sector is as vulnerable to the adverse unintended consequences of BC(A)R SI.9 as any other”. (SI.105 previous post here)

In today’s piece we expand on the raft of unintended consequences of Building Control (Amendment) Regulation (SI.9 of 2014) on the foreign direct investment (FDI) sector, critical for job creation and the economy. It is widely anticipated that the FDI projects will be the subject of another similar part-deferral. Minister Hogan’s explanation as to the reasons for SI.105 less than one week after BC(A)R SI.9 was discussed in the Dáil: see ” Minister explains part deferral SI.105“. President of the representative body for architects (RIAI) Robin Mandal wrote to Ministers Bruton and Hogan in February outlining the compelling reasons for deferral- see post here.

Building Control (Amendment) Regulations, 2014 and FDI (Foreign Direct Investment) Projects 31 March 2014

1. Background

The Regulations set out to improve standards in design and construction following the Priory Hall and pyrite disasters in the residential sector. Despite the limited need for any change at all, they impact on all non-residential projects requiring a fire safety certificate.

The regulations came into force on 1 March. Immediately afterwards, the Minister for the Environment issued a derogation from the regulations in respect of education and health projects. The question is, what other sectors do the regulations also affect adversely? Where will the next derogation come?

FDI projects are a leading candidate.

The regulations have been conceived primarily to respond to disasters in the speculative residential sector. In this sector, the technical design is not particularly complex. In this sector, also, the design is largely complete, or capable of being made so, before the construction process starts when the Design Certificate must be lodged with the local authority. Furthermore, in the commercial residential sector, there is an easily-achievable time lapse between Project Completion and Handover. None of this is true in many FDI projects.

The likely availability of detail drawings and specifications to future interested parties such as purchasers or tenants seems to be conceived to facilitate legal action against the designers and builders of houses and apartments by aggrieved owners. It does not protect the intellectual property latent in the information. Intellectual property in FDI projects is vital.

Furthermore, the regulations are not adapted to different forms of construction project procurement. One single “Assigned Certifier” must certify compliance with building regulations for the entire construction. The regulations do not allow for, e.g., multiple parallel main contractors; or for separate shell-and-core and subsequent fit-out contracts. They are not framed to facilitate the extensive design input from engineering or envelope specialists. This is how FDI projects are structured.

All in all, the unintended consequences for FDI projects are disastrous.

2. Consequences for projects scheduled to start on site in early 2014

By requiring the client to appoint a “Design Certifier” and an “Assigned Certifier”, the regulations cut across many of the defined relationships in the industry, as they are conceived in relation to a traditional design/construction “split”. Each certifier must be a registered professional. This may work satisfactorily if the lead consultant such as the architect or the engineer is appointed. However, at this time, the consequences for professional liability are serious. Several Senior Counsel have given Opinions to the effect that in their present wording, the certificates impose levels of liability which are tantamount to warranties and may be uninsurable.

If and when the liability problem is resolved, the problem of contractual relationships remains. The Forms of Contract, both standard and bespoke, in widespread use across Ireland require rewriting to include the new powers, duties and relationships. This has not been done.

Because of all this, parallel sets of unintended consequences are likely:

  • A hiatus in the start of construction projects in March-April 2014 as the construction sector struggles to adapt its work practices to a set of regulations which cut across the established relationships. Despite soothing words from the Minister in responses to recent Dáil questions, the decline in the number of Commencement Notices serviced indicates a 70% drop in construction starts.
  • Delays as the various actors rebalance their relationships and jockey for legal or commercial advantage.

3. Consequence for project cost

The Government expect the regulations will increase costs. This remark was made primarily with the commercial residential sector in mind. The increased cost of a project which would already be fully-designed is likely to be smaller. Such increases might arise in three areas:

  • Increased cost of professional indemnity insurance;
  • Cost of preparing and making new submissions to local authority;
  • Construction certification costs.

Professional indemnity insurance premia will increase.

The increase for 2014 is predicted to be 15%. This gives no visibility on what happens after that. It is likely that unless the regulations are changed, premia will increase further. This is because the sole “funding mechanism for redress” built into the system is the PII premia paid by the design professionals. If all construction defects going forward are to be funded out of PII premia (ultimately funded by clients), those premia cannot but increase.

Architects have been advocating no-fault Latent Defects Insurance / “project insurance” to be taken out by the client at the start of the job. Such a LDI scheme is already factored into many FDI projects and is unlikely to increase project cost.

There is a significant cost in preparing and making the detailed submissions required prior to handover. These require new dedicated sets of design drawings and specifications “to show compliance with the building regulations”. The level of information required is not fully established but is likely to be on a par with a fire safety certificate application.

The cost of contractors sourcing, providing and retaining, as they are required to do, sets of completion certificates, warranties and the like is difficult to determine.

It is difficult to hazard a guess as to the increased capital cost of these items. No regulatory impact assessment was prepared before the regulations were promulgated and so no cost estimate is available from any third party. Such an assessment should be undertaken, even at this late stage.

4. Consequence for project timescale to handover

The regulations introduce an extended gateway at the start of the project on site, and a new gateway just in advance of project handover on completion. These gateways are separate for each part-project or project-phase, with each fire safety certificate apparently requiring separate sets of certificates. More complexity.

The Commencement Notice is to be accompanied by a Design Certificate, signed by a named designer, to the effect that the design complies in full with the building regulations. The building control authority do not audit the design but must be satisfied that the Certificate has been duly worded.

The Design certificate is also to be accompanied by “such plans, calculations, specifications and particulars as are necessary to demonstrate how the proposed works or building will comply with the requirements of the Second Schedule to the Building Regulations.” This will involve dedicated drawings and specifications to cover the structure, accessibility, drainage, energy etc.. The length of time this additional work will take will vary between projects but will take some weeks.

Just before completion, a further submission is to be made, of revised drawings, specifications, inspection plan, commissioning certificates and more. Without the local authority being satisfied that this submission is valid, the building may not be not be occupied or used.

There are provisions for the accelerated lodgement of certificates which may ameliorate the problem. However, the amount of material needed (typically, some hundreds of documents) will take considerable time to assemble. A similar exercise is done in assembling a Safety File and an O+M file. These, however, are assembled after handover and there is no time pressure. Gathering material in advance of completion is likely to delay handover.

As no regulatory impact assessment was carried out, there is no independent third party advice on how much more time this process will add to a typical project. Designers and contractors will, presumably, be at pains to minimize the extra time involved. One would hazard a guess that the unavoidable extra time to gather the hundreds or sometimes thousands of documents in advance of Handover will add perhaps a couple of weeks to a typical project.

5. Consequence for the protection of intellectual property

The regulations require lodgement of design drawings, specifications, test certificates etc. It is intended that this be available to future purchasers of buildings. It is unclear whether this will be available to the public and on what terms. This is potentially a serious problem for foreign-backed projects. The requirement impacts on (a) design to non-Irish construction and engineering standards and (b) protection of intellectual property.

* (a) Design to non-Irish construction and engineering standards will be more problematic than it presently is. The drawings and specifications to be lodged must “demonstrate compliance with the requirements of the regulations”. Compliance is usually referenced to the building regulations technical guidance documents. Projects designed to other standards will be open to challenge in unnecessary ways and will be threatened by the requirement to lodge, for example, engineering calculations.

* (b) Protection of intellectual property. There is no clarity on whether public access will be denied to detail floor layouts, construction details and design specifications or on what conditions it will be facilitated. It seems likely that the tendency will be to facilitate public access to all this material, and to download it against a modest fee. Material on the web will be viewable all over the world. This is a grave threat to the valuable intellectual property in many FDI projects.

6. Problems relevant to promoters of larger or more complex projects

Furthermore, the following questions seem not to have been considered in drafting the legislation.

6.1 Appointments and tenders

* What happens if the client wishes to appoint his own Engineer from abroad as a Certifier? This person, or these persons, will have to be admitted to the Irish register of engineers – or of architects, depending on the qualifications – and this will involve sometimes protracted review of qualifications under international agreements. Delay.

* What happens if the Design Certifier and the Assigned Certifier are not the same person? This possibility seems sensible, but there is no provision for the Design Certifier to make further submissions after construction starts. Delay.

* What happens if the architect and/or engineer is novated to a Design-Build Contractor (having worked for the developer/other client at the design stage)? If the architect/designer is novated to the Design-Build contractor, the architect and/or engineer will either have to be retained by the owner in a separate direct appointment or another Certifier appointed to the project. The areas of potential dispute regarding design authority and liability appear not to have been considered.

6.2 The construction site

* What happens to Enabling Works contracts? Do all projects now have to have a main contractor on site from Commencement, with associated costs? This also has implications for other forms of procurement including construction management, management contracting etc.

* How does one ‘value engineer’ a change which is not in compliance with the Design Certificate when the project is on site and after the Design Certificates are complete, and the Design Certifier is no longer appointed?

6.3 Possession and handover

* What happens if the building owner wants to occupy the building on a phased basis or when part of the building is not complete? The Regulations permit the submission of Completion Certificates for ‘areas within a building or development of phases thereof’. However, there is no provision for the Certifier to ‘qualify’ the certificate to exclude certain works that are incomplete or not relevant at the time of the Certificate.

Solutions

A simple way to remove the problem for FDI and related projects is to rewrite the legislation so that it applies to projects in the residential sector only, and not to other projects. Then, the opportunity should be taken for a thoroughgoing review of all such hurdles, not to lower standards, but to simplify a process which is growing inexorably.

Letters to ACEI, SCSI & RIAI: BC(A)R SI.9

by Bregs Blog admin team

670px-Account-for-Cost-of-Goods-Sold-Step-2 Self-builder Amanda Gallagher has written to the representative bodies for engineers, surveyors and architects (ACEI, SCSI and RIAI respectively) whose members are registered to act as certifiers under Building Control (Amendment) Regulation (SI.9 of 2014). Amanda Gallagher recently set-up an online petition to highlight the plight of self-builders who have bee adversely affected by the new regulations “Online petition- Self Build in Ireland- BC(A)R SI.9” Specifically she is requesting, on behalf of all self-builders and farmers, what advice has been issued by the ACEI, SCSI and RIAI to their members regarding the status of self-builders. We have noted in previous posts the conflicting and contradictory guidance issued by both professionals, the Department and Minister Hogan “Self builder confusion: BC(A)R SI.9“.

The most recent statement from Martin Vaughan in the Department would suggest self-building is possible, but this is at odds with the SI.9 Builder’s Completion Certificate and other legal interpretations of BC(A)R SI.9 to date. As we have previously noted the Builder’s Certificate states “to be signed by a Principal or Director of a building company only“. Copy of Certificate is attached.

The representative body for self-builders (IAOSB) has written for clarification on the matter to the Attorney General, see previous post “Self builders write to Attorney General: BC(A)R SI.9” A recent Law Society advice (discussed here) poses the question will members of these three professional bodies assume certifier roles for self-build projects?

The IAOSB also have previously written on 23rd February 2014 to Robin Mandal president of the RIAI requesting clarification of status of self-builders (Link Here: Letter from IAOSB to Robin Mandal). In this letter they complain about statements made by the director of the RIAI John Graby in a radio interview about self-builders on 6th February 2014. They suggest his advice on self-builders, which was in agreement with the Minister, was contrary to RIAI policy as noted in a Engineers Ireland CPD event on 17th January 2014. RIAI CPD keynote speaker Orla Fitzgerald on 24th February 2014 confirmed, to 500 architects at an RIAI briefing event in the Aviva stadium, that self-building was no longer possible after 1st March 2014 (see post here).

The IAOSB also have complained to the Department about similar contradictory advice. Here are the letters sent to the representative bodies for architects, engineers and surveyors (RIAI, ACEI and SCSI respectively) by Amanda Gallagher.

________________

RE: Important Letter for Mr Robin Mandal (RIAI- representative body for architects)

Dear Robin,

My name is Amanda Gallagher and along with my husband, Raymond, we were hoping to ‘self build’ our new family home in Co. Sligo.  We were featured along side you on the Six One News on Friday, February 28th last.  We were absolutely devastated on Saturday, March 1st when Minister Hogan went ahead with implementing the Regulations. Naively, we thought the Minister may just listen to us and defer  – I know you also asked him to defer, albeit for different reasons, and for this I thank you.

The reason I write to you now is if you could kindly let me know if you are advising your Members on the issue of self-certification under SI 9 and if your are advising them if they should work alongside ‘self-builders’ or not? You asked the Minister for clarification of what the self builders role would be under SI 9 and as of yet we have not had a definitive statement as to what this role is. Despite the Minister and his officials ‘reassurances’ to the Nation that self build / direct labour can continue as before under these laws – I am sure, as are you I presume, that this is total nonsense.

I understand that the Irish Building Control system has failed in the past with the high profile Priory Hall epitomising everything that was wrong with our system. But Robin any ordinary person can see that the SI 9 are in no way a solution to that faulty system of Building Control. We, as self builders, will be fighting the SI 9 until they are put into the shredder! We will be calling for a sensible solution to them – an Independent Building Inspectorate. – a system that could include the self builder.

I await your reply Robin, as I would love to hear the truth regarding the RIAI’s advise to its members regarding self certification under SI 9.

Thanking you,

Amanda Gallagher

Co. Sligo

________________

RE: Important Letter for Anne Potter (ACEI- representative body for engineers)

Dear Anne,

My name is Amanda Gallagher and along with my husband, Raymond, we were hoping to ‘self build’ our new family home in Co. Sligo.  We were featured on various RTE Radio & TV Shows in the week preceding Saturday, March 1st last.  We were absolutely devastated when Minister Hogan went ahead with implementing the Regulations. Naively, we thought the Minister may just listen to us and defer these laws until a better solution could be worked out – and since then I have learned that a more sensible solution to the SI 9 had been put to the Minister but of course he chose to ‘close his ears’ – a thing he does quite alot I’ve come to realise.

The reason I write to you now is if you could kindly let me know if you are advising your Members on the issue of self-certification under SI 9 and if your are advising them if they should work alongside ‘self-builders’ or not? Despite the Minister and his officials ‘reassurances’ to the Nation that self build / direct labour can continue as before under these laws – I am sure, as are you I presume, that this is total nonsense. I believe at the Engineers CPD on January 17 – a unanimous decision that ‘self build is over’ under SI 9 was reached between yourselves, the CIF and the Mr Martin Vaughan from the Department.  Mr Vaughan astonishingly, has now issued a statement that self build can continue under SI 9 – the contradictions and confusion surrounding SI 9 is staggering.

I understand that the Irish Building Control system has failed in the past with the high profile Priory Hall epitomising everything that was wrong with our system. But Anne, any ordinary person can see that the SI 9 are in no way a solution to that faulty system of Building Control. We, as self builders, will be fighting the SI 9 until they are put into the shredder! We will be calling for a sensible solution to them – an Independent Building Inspectorate. – a system that could include the self builder.

I await your reply Anne, as I would love to hear the ACEI’s advice to its members regarding self certification under SI 9.

Thanking you,

Amanda Gallagher

Co. Sligo

________________

Important Letter for Kevin Hollingsworth (SCSI- representative body for surveyors)

Dear Kevin,

My name is Amanda Gallagher and along with my husband, Raymond, we were hoping to ‘self build’ our new family home in Co. Sligo.  We were featured on various RTE Radio & TV Shows in the week preceding Saturday, March 1st last.  We were absolutely devastated when Minister Hogan went ahead with implementing the Regulations. Naively, we thought the Minister may just listen to us and defer these laws until a better solution could be worked out – and since then I have learned that a more sensible solution to the SI 9 had been put to the Minister but of course he chose to ‘close his ears’ – a thing he does quite alot I’ve come to realise.

The reason I write to you now is if you could kindly let me know if you are advising your Members on the issue of self-certification under SI 9 and if your are advising them if they should work alongside ‘self-builders’ or not? Despite the Minister and his officials ‘reassurances’ to the Nation that self build / direct labour can continue as before under these laws – I am sure, as are you I presume, that this is total nonsense. Kevin there is so much confusion surrounding these Regulations and I feel the very least the Minister can do along with the Professional bodies is be truthful with the Citizens.

I understand that the Irish Building Control system has failed in the past with the high profile Priory Hall epitomising everything that was wrong with our system. But Kevin, any ordinary person can see that the SI 9 are in no way a solution to that faulty system of Building Control. We, as self builders, will be fighting the SI 9 until they are put into the shredder! We will be calling for a sensible solution to them – an Independent Building Inspectorate. – a system that could include the self builder.

I await your reply Kevin, as I would love to hear the SCSI’s advice to its members regarding self certification under SI 9.

Thanking you,

Amanda Gallagher

Co. Sligo

________________

Builder’s Completion Certificate (extract from BC(A)R SI.9): SI9 Builder's cert