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.

Engineers Ireland CPD 10th June

by Bregs Blog admin team

under-construction-icon

The following CPD event summary was submitted on 11th June 2014.

Engineers Ireland (South East) hosted a CPD lecture on Tuesday 10th June 2014 at the Carlow Institute of Technology on the subject of “Working with the new Building Control (Amendment) Regulations: S.I. 9 2014”. The event was very well attended with approximately 60 engineers and architects present.

Presentations were made by Eoin O’ Dowd, Building Control Officer with Carlow County Council and Luke Goldsmith, a practicing fire safety consultant. Their presentations provided an overview of their experiences to date and focused on practical advice on interpretations of the regulations by the Building Control Authority and on undertaking the roles of design certifier and ancillary certifier with a specific regard to Fire Safety Certification.

The subsequent Q+A session was informative.

Mairéad Phelan, Senior Engineer at Fingal County Council who led the development of the Building Control Management System (BCMS) was in attendance. Ms. Phelan made the following comments in relation to the operation of the BCMS:

  • There are problems with online ‘Short Form’ Commencement Notices, 7-day notices and Completion Certificates, all of which must be submitted in hard copy.
  • There are 1300 or so Commencement Notices floating around in the BCMS. 800* of these have been validated and the remainder are mainly “absolute rubbish”.
  • The Department of the Environment’s S.I. 105 oversight committee meets weekly to assess possible derogations (exemptions) from S.I. 9 for education and health related projects.
  • Only one derogation has been granted under S.I. 105 to date for a school project in Co. Wicklow (since introduction of SI 105 on March 7th 2014).
  • The industry is on a steep learning curve as many participants [builders] are only beginning to wake up to the fact that there are Building Regulations in this country.
  • The BCMS hope to publish some examples of good Commencement Notice submissions as industry guides in the near future.
  • The BCMS acknowledges there have been problems in responding to requests for information and clarification. Ms. Phelan advised that the BCMS hope to rectify the email section the site shortly and invited those present to email her directly.
  • The BCMS website has experienced many teething problems since its introduction partly due to the fact that its developer’s first language was not English.

*Note: Bregs blog has requested clarification from the Department separately of this total: the documented number of validated commencement notices to May 26th is 509 on the Local Government Management Agency website here. Download excel document from website of BCMS-  register record: BuildingRegister26thMay (7)

Other posts of interest:

BC(A)R SI.9- BCMS: “must do better” – click link here

ALERT: Cork CoCo guide to BC(A)R SI.9 – click link here

Building Control Officers: Survey – click link here

Irish Times: Dramatic fall in number of buildings being started- click link here

Invalid “short form” commencement notices: BC(A)R SI.9 – click link here

Building Control Officer issues: Conference April 2014 – click link here

Building Control Officers need help! BC(A)R SI.9 – click link here

Part Deferral of BC(A)R SI.9 (SI.105) – click link

 

 

Advertisements

Press piece: BC(A)R causes surge?

by Bregs Blog admin team

app+crane+house+build

In the following article in the Irish Independent from 29th April 2014 by Mark Keenan “New rules spark surge of construction activity“, the tidal wave of new commencement notices to hit local authorities in January/ February 2014 in advance of implementation of SI.9 is discussed. Many in the construction sector are feeling an upswing in activity as a result (Link to Irish Independent article here).

What was not mentioned is the consistent -73% drop off in commencement notices since March 1st, confirmed more recently by Frank McDonald in the Irish Times (see post here).

A recent survey of consumer sentiment undertaken by the Construction Industry Federation (CIF) in May suggested an uneven uplift in activity (see survey post here). Quote:

“…All this highlights that not only is work on the ground not on the increase, but the potential for work is also falling away for certain portions of the industry…While everyone in the construction industry is delighted to see an increase in activity, what this survey highlights is that the growth is not being evenly felt across the board.

Some commentators believe this uneven increase in construction activity is due to this “spike” in commencement notice levels in advance of implementation on 1st March 2014, owners trying to avoid the new system. Many believe a “tender hole” will be created towards the end of the summer when the lower levels of commencements feed through the system and tenders for new work will dry up.

The official number of valid commencement notices on the Local Government Management Agency’s Building Register website is shown at 509- this is for a 3 month period to May 26th (source document BuildingRegister26thMay (7)). The average number for 3 months in 2013 was 1,863.

This trend seems has established itself over the past 3 months and when read alongside some of the concerns in the CIF survey, the new regulations would appear to be impeding a recovery in the construction industry and consequent job creation.

Extract from Irish Independent article:

__________

New rules spark surge of construction activity

A DEADLINE for stringent new building regulations helped spark a 200pc surge in residential construction activity in the first two months of the year.

Commencement notices for projects to local authorities jumped 192pc across the country in January and February compared with the same period last year.

Huge pent-up demand in the sector has been cited as one of the causes of the surge in activity.

But another reason was builders attempting to get going before a March deadline in order to avoid a slew of stiffer rules governing home construction.

The figures are contained in the National Housing Construction Index, compiled and issued today by the company Link2Plans, which monitors construction activity on behalf of businesses.

Danny O’Shea, managing director of Link2Plans, said: “What we have seen in January and February of this year with project commencements has been nothing short of staggering.

“Three key factors have all aligned to create this huge increase. The first being a pent-up demand in the sector, the second being increased confidence to start new residential projects, and thirdly the rush to lodge commencement notices before the March 1 deadline for the introduction of the new building regulations.

INCREASE

“What was regarded as purely a regulatory change appears to have had a seismic impact on residential construction activity, greater than any increase arising from changes in last October’s Budget.”

Planning applications were up 21pc in the same period with just 10 counties out of 26 showing a fall compared with the same period last year.

The data for the study is aggregated from real-time planning and project information in every local authority area.

Other posts of interest:

Press: Fears construction recovery will stall – click link here

CIF Construction Confidence Survey – click link here

Minister Hogan rejects Irish Times Article – click link here

Irish Times: Dramatic fall in number of buildings being started – click link here

BC(A)R SI.9- BCMS: “must do better” – click link here

Building Control Officers: Survey – click link here

Breg Snapshot Survey: BC(A)R SI.9 – click link here

Iaosb letter to Minister Hogan following his replies in the Seanad – click linkhere

 

PYRITE & THE ASSIGNED CERTIFIER

by Bregs Blog admin team

human-crash-test-dummy-3

The following opinion piece was submitted on 9th June in response to recent media coverage and concern regarding the re-occurrence of pyrite in new construction. This post is a general opinion piece not a specific commentary on a number of projects currently identified as containing defective pyrite blockwork.

PYRITE & THE ASSIGNED CERTIFIER

Private housing and the pyrite issue – who will pay the next time?

by Bregs Blog admin team

Why did the Minister amend the Building Control Regulations?

The Minister for the Environment amended the building control regulations for two reasons. Those reasons were: (1) Priory Hall and (2) The pyrites problem. He felt that the designers and builders should be made fully responsible for what they do. The new regulations require an Assigned Certifier to sign off on the completed building.

Did anybody point out to the Department of the Environment that the new Building Control Regulations might not deal with the potential Pyrite problem before the legislation was introduced?

They did. The Pyrite Panel, appointed by the Minister to report on how to avoid a reoccurrence of the pyrite problem, said:- The system of independent inspections, carried out by the building control officers, should be strengthened. When S.I. 80 of 2013 and then S.I. 9 of 2014 ignored this recommendation, the writing was already on the wall for the next disaster.

What is likely to happen if the concrete blocks in a recently-built house are found to contain pyrite?

The house will have to be demolished and rebuilt. This will cost on average in the region of €200,000 each time, as well as the cost of relocating the home owner and their family for 1 year while the work is done.

Who will pay for this?

Under the new Building Control Regulations this remains to be seen. The house owner or their insurers will be unwilling to absorb the cost as they relied on getting a defect-free house. However they will need to chase all those involved through the courts to obtain redress.

And surely the Contractor would be liable?

Not if the Contractor has gone into liquidation, or just points out that he followed the architect’s specifications. Under the wording of the S.I. 9 Certificate of Completion, the builder certifies that the building or works as completed has been constructed in accordance with the plans, calculations, specifications, ancillary certificates and particulars as certified under the Design Certificate.

So if the builder builds per the engineer’s specifications, that will exonerate him.

But would the Engineer not be liable, as this is an engineering issue?

Presumably the Engineer signed an Ancillary Certificate. But it has been pointed out by the Law Society of Ireland that there is no need to look beyond the Assigned Certifier’s certificate of Completion. It would be very unwise of the Assigned Certifier to think that she or he can pass the responsibility down the line.

The wording of the Ancillary Design Certificate allows the engineer to rely on the certificates which the supplier gives him. This looks like the engineer’s let-out for the pyrite. If the blocks contain pyrite, they are not per the engineer’s specification, but that’s not the engineer’s fault.

Is the building material supplier who sold the concrete blocks not liable? Or if not, is the quarry where the material for the concrete blocks originated not liable?

Perhaps. But in order to “kick the liability this far down the line” the Assigned Certifier will need:-

  1. His own Certificate of Completion;
  2. His engineer’s ancillary certificate;
  3. A certificate from the building materials supplier (obtained through whom? The contractor, who gives it to the engineer, who gives it to the architect) that every load of concrete blocks he delivered was pyrite-free;
  4. A certificate from the quarry owner (obtained through whom? The building materials supplier, who gives it to the contractor, who gives it to the engineer, who gives it to the architect) from the quarry certifying that the aggregate was pyrite free;
  5. A certificate from the pyrite testing company (obtained through whom? The quarry, who give it to the building materials supplier, who gives it to the contractor, who gives it to the engineer, who gives it to the assigned certifier) that the blocks were tested and found ok.
  6. To be able to join the building materials supplier, the quarry owner, and the testing company into the proceedings. If these firms are in liquidation, the Assigned Certifier will likely pick up the tab under the legal doctrine of Joint and Several Liability.

Can the Assigned Certifier avoid paying for it?

It is difficult to see how the Assigned Certifier can avoid responsibility for the cost. Under the “Certificate of Completion” the Assigned Certifier has signed the following declaration:-

I now certify, having exercised reasonable skill, care and diligence, that the building or works is in compliance with the requirements of the Second Schedule to the Building Regulations, insofar as they apply to the building or works concerned.

The Second Schedule to the Building Regulations requires, at requirement D2:-

“All works to which these Regulations apply shall be carried out with proper materials and in a workmanlike manner.”

“Proper materials” means materials which are fit for the use for which they are intended and for the conditions in which they are to be used, and includes materials which comply with an appropriate Irish Standard or Irish Agrément Certificate or with an alternative national technical specification of any State which is a contracting party to the Agreement on the European Economic Area, which provides in use an equivalent level of safety and suitability.

As the materials are not “proper”, they are not fit for their intended purpose, the requirement has been breached. The Assigned Certifier has certified something which is untrue. He or she will be liable for that untrue certification.

But surely the Assigned Certifier can rely on the “reasonable skill and care” provisions negotiated by the RIAI in the improved S.I. 9?

No. The AC now knows that there is a new and spreading problem with pyrite. An expert witness for the prosecution will establish in five minutes that it would not be enough for the Assigned Certifier to just check that there was a specification.

 But won’t the Assigned Certifier have Professional Indemnity Insurance?

Anybody who imagines that after the Professional Indemnity Insurers people pay out once for pyrite, they will insure the same Assigned certifier each year for the same price, knows nothing about the laws of economics. Or as happened in some of the earlier pyrite instances, Insurers paid for the first one or two but when the Professional Indemnity policy came due the insurer refused to cover the following year. As Professional Indemnity Insurance is on a claims made basis you must have insurance when the claim is made and not when the problem is caused.

So how can an approved professional acting as an Assigned Certifier protect herself be protected in this situation?

By getting somebody else to act as Assigned Certifier at the start. Or consider timber-frame construction!

Would a system of independent inspection of design and construction have coped any better with recent pyrite issues?

It would- if it was integrated with a system which involved the Building Control Authorities actively monitoring building materials (already required under EU Directive) together with a system of feedback from the inspection system and most importantly, the statutory powers to enforce compliance on all suppliers. Assigned Certifiers under SI.9 have no such roles or powers.

What are the professional bodies such as the SCSI, ACEI and RIAI going to do to help their members who may be forced to act as Assigned certifier?

You had better ask them yourself.

 

Other posts of interest:

Government Reports & Professional Opinion Ignored in S.I.80 – click link here

RTÉ Radio: Pyrite Alert – click link here

7 posts all architects (surveyors + engineers) should read – click link here

RIAI PRACTICE ALERT: Pyrite in blocks – click link here

Practical Post 16: Pyrite and certification? – click link here

The regulations ignore key recommendations of the Pyrite Panel – click linkhere

Assigned Certifiers facing jail? BC(A)R SI.9 – click link here

Clear and auditable trail: consumer protection? BC(A)R SI.9 – click link here

Legal perspective: consumer benefit? BC(A)R SI.9 – click link here

The Blog was in contact with a registered professional who has advised Professional Indemnity insurers on defending claims against other construction professionals and who wishes to help colleagues protect themselves. We put a series of questions to ascertain likely implications from the potential pyrite problem (currently affecting Leinster) on the role of the Assigned and Design Certifiers under the recently amended Building Control Regulations. As this is an opinion pieces, we do not endorse or recommend any practices, interpretations or duties in this post. We suggest professionals contact their respective professional bodies with concerns or queries.