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: August, 2014

Top 7 for 7- August 30th 2014

by Bregs Blog admin team

In case you missed it here are the top 7 most read posts for this week! Enjoy…

BRegs Blog

7-backlinks

Top 7 for 7- August 30th 2014

by Bregs Blog admin team

The last weekend of a very busy holiday month! The following is a list of the most read posts from the past 7 days on Bregs Blog. This week there was a ‘lot of heat’ on Twitter concerning Part L compliance.

  • Thermal experts and passive designers discussed conflicts within existing Part L of the regulations (Conservation of Fuel & Energy) making compliance very difficult for certifiers. We published two opinion pieces on Part L by Mark Stephens on the need for a separate ancillary certifier for Part L- others posts  to follow next week also.
  • New revised parts of the building regulations Part K (Stairways, Ladders, Ramps & Guards) and new Part J (Heat Producing Appliances) were due to be introduced soon and registered professionals would be well advised to change to the new standards immediately.
  • There have been various perspectives in the media concerning housing supply, rental levels and construction. We collected…

View original post 309 more words

Building Control Institute and Pyrites- 2008

by Bregs Blog admin team

cover page

The Blog team have been looking through the archives recently. Here is an interesting and very relevant presentation from 2008 on Pyrites by Joe Boyle to the Irish Building Control Institute (IBCI) Conference.  Link to presentation here; Pdf:Pyrites the Building Control Experience – Joe Boyle

In the presentation the author noted that pyrites first came to the notice of Building Control Authorities in early 2007. It was noted that the pyrite problem could pre-date this back to 2004. Some notable extracts:

“…Source quarry, CIF, Insurance underwriters & DoEHLG were notified of pyrites problem and asked to warn specifies, designers & builders of this hazard.”

Building Control proactive preventative policy much more satisfactory than legal enforcement action.

That the problem is much greater than currently known – Independent inspection evaluation process needs to be put in place. Followed by long-term insurance compensation supported by the property insurance industry…”

In the presentation the following recommendations were made for future action:

FUTURE LOCAL AUTHORITY BUILDING CONTROL SUPPORT 

1. Building Control can best serve the industry by controlling the pyrites at the quarry source.

2. Quarrying activity should be matched by a corresponding testing of materials to satisfy compliance with the amended NSAI S.R.21 Clause

3.4.2 Total sulphur < 1% by mass of aggregate & Annex E which advises that a detailed mineralogical examination be carried out by a suitable experienced petrographer.

3. Control can be managed by checking that hardcore delivered to sites is properly certified

This presentation is in agreement with the Pyrite Panel 4 years later in June 2012: “In relation to inspections carried out by building control officers, the Panel considered that it was unreasonable to expect that the unprecedented issue relating to pyrite in hardcore could have been identified by building control officers or other building professionals during normal inspections of construction sites“.

See Pyrite Panel Report 2012 here: PyriteReport pdf

Have we learned anything since this presentation was made 6 years ago? Were the recommendations of Building Control Officers on the matter considered by the Department of the Environment?

Other posts of interest:

The €64,000 question: How big is the pyrite problem?

Pyrite & SI.9- what happens now?

Building Control Officers: Survey

Building Control Officers need help! BC(A)R SI.9

The regulations ignore key recommendations of the Pyrite Panel

Dáil: Proactive vs Reactive Building Control? BC(A)R SI.9

Government Reports & Professional Opinion Ignored in S.I.80

Four Questions for Conveyancing Solicitors: SI.9

by Bregs Blog admin team

5-questions-formation-lean-manufacturing

We received these four questions from a registered professional on 23rd August 2014.

Four Questions for Conveyancing Solicitors: SI.9

1. Have you told the purchaser that the name of the ‘owner’ (vendor) is not on the statutory Completion Cert? This might matter to the purchaser if there is a problem with the Cert or to the local authority trying to take enforcement.

2. Have you told the purchaser that they themselves could be in breach as the ‘new owner’ and that they are responsible for bringing the building into compliance (under the Building Control Act)?

3. Have you told the purchaser that you didn’t accept Ancillary Certs from the Certifier (Law Society advice), even though this information could help the home buyer track down the person responsible for a defect?

4. Have you told the purchaser that the Completion Cert is a ‘guarantee’ for construction defects on their new home?

Are you sure about that?

Other posts of interest:

Summary of Legal Posts- BC(A)R SI.9

Top 7 for 7- August 30th 2014

by Bregs Blog admin team

7-backlinks

Top 7 for 7- August 30th 2014

by Bregs Blog admin team

The last weekend of a very busy holiday month! The following is a list of the most read posts from the past 7 days on Bregs Blog. This week there was a ‘lot of heat’ on Twitter concerning Part L compliance.

  • Thermal experts and passive designers discussed conflicts within existing Part L of the regulations (Conservation of Fuel & Energy) making compliance very difficult for certifiers. We published two opinion pieces on Part L by Mark Stephens on the need for a separate ancillary certifier for Part L- others posts  to follow next week also.
  • New revised parts of the building regulations Part K (Stairways, Ladders, Ramps & Guards) and new Part J (Heat Producing Appliances) were due to be introduced soon and registered professionals would be well advised to change to the new standards immediately.
  • There have been various perspectives in the media concerning housing supply, rental levels and construction. We collected a number of recent proposals from commentators and vested interests on the topic. Given the acute fall-off in commencements due to SI.9 since March and the normal lead-in times from planning to completion of between 15- 24 months, an increase in housing supply would seem highly unlikely in the lifetime of this government.
  • The continued decline in commencement notices was re-confirmed and we observed that, based on current figures, we were looking at a decline of 50% in new building commencements for 12 months since implementation of SI.9 in March 2014. A worrying trend.
  • We submitted our reader’s list of 20 questions to the Society of Chartered Surveyors (SCSI). This follows a very informative Q+A post series with answers provided by Mairéad Phelan, Project Manager for the BCMS (Local Government Efficiency Review, Programme Management Office).
  • In our 7th most read post this week we wondered if Priory Hall remedial works would be completed under SI.9, or would the local authority avail of some form of exemption. Quote: “It would be ironic if remedial works to Priory Hall were not completed fully under the new building control regulations“.

Posts listed in order of reader popularity. Enjoy!

Design Certifiers – 3 things about certifying Part L…

Practical Post 24: New Part K & J of Building Regulations

SI.9 and Part L | Are specialist ancillary certifiers needed? Part 1

So much time and so little to do…

Continuing Collapse in Commencement Notices: Building Register – 5th August 2014

SCSI + S.I. 9 | 20 Questions

Any sign of a Commencement Notice for Priory Hall?

 

Other top posts:

Top 7 for 7- August 23rd 2014

Top Posts for July 2014

Top 20 Breg Blog posts for June 2014.

Top 10 for June 7th | BRegs Blog

Top 12 posts- week ending 31st May

TOP 10 for the week ending 17th May 2014

Top 7 posts for the week-10th May

Upcoming CPD for BC(A)R SI.9

by Bregs Blog admin team

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UPCOMING CPD for BC(A)R SI.9

RIAI Design Certifier Dublin 4 September (Note this is a repeat of July 2014 event reported here:)

Innovation in Building 12 September in Citywest

CMG event Dublin 24 September (Repeat of March event reported here: )

CIF Annual Conference 1 October

RIAI Conference Dublin RDS 12-13 October (Note Building Control will be a topic for discussion)

Architecture Expo 12-13 October

Finally .. NZEB conference in October 15

Inadequate Regulatory Impact Assessment for S.I.9- Look Back 2

by Bregs Blog admin team

elephant

This is the second in a series “Look Back” Posts which examines older papers and opinion pieces that are still relevant  to the situation post-implementation of BC(A)R SI.9. Recent  readers may have missed some interesting posts in our 500+ post archive.

Today we look at the lack of a proper Regulatory Impact Assessment for SI.9 (previously SI.80).

A very brief 6 page regulatory impact assessment (RIA) for the new regulations was undertaken in 2012 on an early draft of SI.80. In contrast, the UK completed a very comprehensive study to examine how to improve their system of approved independent inspectors, looking at various options and costing these in terms of cost/benefit to consumer and industry. The UK report included the Irish system as a option: light-touch, low-cost (to local authorities), self-certification, but discounted this early on due to cost to the consumer and to the wider industry.

It is worth opening and comparing both pdf’s listed in this post. The UK version is a comprehensive 41 page document looking at various options and comparing costs/benefits; the Irish version has a very brief 6 page impact section (Section 4: pages 18-23) which has only one cost range mentioned:

“..industry sources suggest this requirement could add say between €1,000 to €3,000 per housing unit to the overall building costs

No methodology is given for this calculation and we still wonder who the ‘industry sources’ were who provided this estimate.

In a previous post The extraordinary cost of BC(A)R SI.9 of 2014 the cost of SI.9 to the consumer and industry (based on UK methodolgy) was estimated to be circa €500m per annum.

There was no revised RIA completed for later drafts of SI.80 (2013 version), or for SI.9, the current regulation which was introduced in March 2014.

The post below was first published on Breg blog on 6th December 2014.

______________

Audit-Checklist

Inadequate Regulatory Impact Assessment for S.I.9 (Pre.80)

To find out how one might effectively assess building control amendments we do not have to look far: the “Communities and Local Government: Proposed changes to the building control system – Consultation stage impact assessment” report was produced in the UK in 2012. You can read it here: Proposed Changes to the building control system – consultation impact assessment (UK). The report comprehensively examines several options to revise and change the UK building control system. Their existing system, unlike ours, already has comprehensive local authority independent inspections with 80% backed by warranty.

The UK report included the Irish system as a option: light-touch, low-cost (to local authorities), self-certification, but discounted this early on due to cost to the consumer and to the wider industry. Making the system of building control simpler, leaner and more cost effective for society in general is clearly a motivating factor.

The UK is our closest model in terms of building standards, legislative system and environment. We are a fraction of the size of the UK, however our demographics are similar. One must wonder after reading this document, how the Department of the Environment, Communities & Local Government (DECLG) opted to continue with the most expensive form of building control for the industry, when a simple system of self-funded local authority independent inspections would improve building standards and save the industry tens of millions per year, while delivering a better standard of building generally and giving the consumer redress in the event of latent (hidden) defects?

Despite over 500 stakeholder submissions on S.I.80 received by the DECLG, no such study was carried out here. It appears that at no point in the consultation process or formation of S.I.80 have the impacts on SMEs, the industry and the consumer been considered in detail. The National Consumer Agency (NCA) estimates the extra cost to the Irish house building industry alone would be in the region of €30m- €90m per year (based on a sustainable level of 30,000 new dwelling units per year). The financial impact of S.I.80 on the wider industry is likely to be a multiple of this. With no comprehensive independent system of local authority building inspections, the effect of S.I.80 on building standards will not give the return for this extra cost to the industry, nor to the consumer. In their 2012 submission the Competition Authority express concern about “whether the additional costs imposed by the proposed regulations are in proportion to any benefit they might bring”

Worryingly, it would appear that the Department did not carry out a Regulatory Impact Assessment (RIA) of the March 2013 wording of S.I.80. A very brief RIA was completed in 2012 and the lack of a follow-up would suggest some of the very significant changes introduced by the Minister in the March 2013 draft have not been comprehensively examined. The RIA produced by the department is included as part of the following document “Strengthening the Building Control System – A Document to inform public consultation on Draft Building Control (Amendment) Regulations 2012″. See document Strengthening the Building Control System: DECLG 2012.

The Impact section (section 4) of the RIA is only six pages long and does not appear to be backed up with any research. For example, under the Section 4.6(i) Impact on National Competitiveness, the report makes the simple claim “There will be no negative impact on Ireland’s competitiveness”. The only costs noted is a notional cost per dwelling. Remarkably, the more significant insurance costs are excluded. This is an extraordinarily light assessment of a very significant amendment.

We do not need to look to the UK for examples of good impact assessment. The RIA of our own Construction Contracts Act 2013 (available here) and recent Health & Safety Legislation (available here) provide far more comprehensive analysis. Why has S.I.80 only had the most cursory impact assessment done on the 2012 draft and nothing since? Already three Senior Counsel legal opinions completed on the March 2013 draft of S.I.80 identified serious legal and practical issues associated with implementation, and all concurred that S.I.80 is unworkable in its current form. Given the wide-ranging effects on the construction industry, SMEs and the wider economy, it is remarkable that essential stress-testing has not been completed by the department.

Other posts of interest:

World Bank Rankings, Ireland & SI.9 – Look Back 1

BREGS Blog Archive 4- FEBRUARY 2014

BREGS Blog Archive 3- JANUARY 2014

BREGS Blog Archive 2- DECEMBER 2013

BREGS Blog Archive 1- NOVEMBER 2013

SI.9 and Part L | Specialist ancillary certifiers Part 2

by Bregs Blog admin team

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The following opinion piece was submitted by registered architect and Passivhaus Designer Mark Stephens on August 27th 2014 and is a continuation of the post ‘SI.9 and Part L | Are specialist ancillary certifiers needed? Part 1’

A critical aspect of heat loss in a building are through ‘Thermal Bridges’: A thermal (or cold) bridge is where heat can pass through from the outside of the building to inside through a material of higher conductivity. This normally occurs where the thermal insulation layer is penetrated or compromised. Thermal Bridge free design is one of the key requirements of Passivhaus design, construction and certification. (I have written a short Fact Sheet on Thermal Bridges HERE)

Thermal Bridges are also included in the calculation of transmission heat losses in the Dwelling Energy Assessment Procedure (DEAP) software. There are three default values available for ‘Thermal Bridging Factor’ (y) in DEAP (Appendix K in the DEAP Manual):
A default value of y = 0.15 W/m2 applies for all dwellings except the following:
• y = 0.08 W/m2 for new dwellings whose details conform with “Limiting Thermal Bridging and Air Infiltration — Acceptable Construction Details” (www.environ.ie) as referenced in Building Regulations 2008 and 2011 TGD L. This requires that the relevant drawings be signed off by the developer/builder, site engineer or architect.

(The third default value only applies to new dwellings where Building Regulations 2005 TGD L applies which I’m omitting here as we’re focussing on current Regulations.

Already we can see a conflict with S.I No.9 of 2014 and the sentence:

“This requires that the relevant drawings be signed off by the developer/builder, site engineer or architect.” needs to be amended to include references to S.I No.9 of 2014 which would be at Design stage the “Designer’ or at Completion stage, the Assigned or Ancillary Certifier.

The process currently is as follows (including for S.I No.9 of 2014):

1. In order to achieve the lower default value of 0.08 W/m2, The “Designer” is required to submit details that conform with “Limiting Thermal Bridging and Air Infiltration — Acceptable Construction Details”. The “Designer” currently takes responsibility for these details and effectively “signs” them off when submitting them to the BER Assessor

2. The “Designer” submits these “signed-off” details to the BER Assessor who then inputs the lower default value of 0.08 W/m2 into DEAP.

3. If the project is a new home offered for sale off plans, a provisional BER is issued based upon the design drawings and building specifications. This provisional BER is valid for a maximum of 2 years. When the home is completed, the provisional BER must be replaced by a final BER based on a survey of the completed home supported by the final drawings and building specifications which represent the home as constructed.

The SEAI have produced a guide to assist BER assessors with this survey of the completed home: DEAP Survey Guide

It should be noted that this survey is a visual inspection only and backed up only with supporting documentation in the form of photographs, drawings, specifications “Reports of works carried out in the dwelling from a supervising engineer or architect are acceptable as supporting evidence.”.

I will emphasise that no Part L compliance checks take place throughout the construction of a dwelling by the BER Assessor until he conducts the final survey on completion, which is a visual inspection only. The responsibility (again) rests with the Assigned Certifier who may not be suitably qualified in specialist aspects of Part L compliance.

As we have seen in the previous POST the Ancillary Certificates already exist for BER Assessors to be included within the S.I No.9 of 2014 process but what is missing is a clear instruction from SEAI that BER Assessors may also be requested to sign up to the “Code of Practice for Inspecting and Certifying Buildings and Works” in order to complete the Ancillary Completion Certificate (INCLUDING) Inspection.

Other posts related to this topic:

Design Certifiers – 3 things about certifying Part L… 

Why the design certifier and architect need third party building fabric assessments

Opinion piece: new building regulations and materials risk analysis

Dispensations and Transition Arrangements

Practical Post 10: No retrospective compliance – BC(A)R SI.9

Practical Post 13: Duties & conflicts- BC(A)R SI.9 

So much time and so little to do…

by Bregs Blog admin team

willy.pdf [Converted]

The following opinion piece was posted by the Breg Blog Admin. team on 26th August 2014.

So much time and so little to do…

The spin from government and vested interests in the construction industry regarding housing need continues. Since implementation in March 2014, the so-called “BCar Effect” (some call it the BCAR Crash) has resulted in a drop of 50% in the levels of commencement notices nationwide as a result of consumers and professionals being reluctant to incur increased costs and liability as a result of this defective regulation. Many plans to address “the housing problem” have come to the fore. The question is, which plan to go for?

For readers we have summarised some of the more notable “proposals” from industry and commentators – see links below.

Certainly by 2006/ 2007 we were producing far too many dwellings – half of the total output for the UK with 1/20th the population. We needed a period of depressed construction output for this excess supply to work its way through the system. The question is, has that happened and is it time to start increasing output again?

We think the ‘number’ of houses and dwellings, dwelling types etc. could benefit from a far more exhaustive analysis based on current and projected population growth, demographics and land-use/ housing stock availability. Current yields on average prices are approaching industry standard so the increase in rental level may well be appropriate. Affordability has improved for purchasers on paper, notwithstanding historically low mortgage approvals. Rob Kitchin’s Blog “Ireland after Nama” (see link below) has a good comparison of both the recent ESRI report and Housing Agency housing supply reports – both use a fairly standard housing projection model using housing stock, population projections, household size, vacancy and obsolescence.

The situation is indeed complex and we are being hit with conflicting messages – vulture funds are scooping up as much trophy tenanted properties ‘off-market’ as they can get, homelessness is on the rise, a construction boom is appearing in Dublin but output is still depressed beyond the Pale. While the nation’s sovereign debt rating is dependent on the performance of the world’s biggest landowner (NAMA), an increase in property prices will benefit the balance sheet of the government and banks with which the country now is so intertwined. David Hall suggested possible market manipulation by banks in a recent article in the Irish Examiner (see below).

Housing Supply may not improve within the next 12-15 months.

Prices for the past few years were below cost making it nonviable even for solvent developers to build – they would be building out sites at a negative value and crystalising losses. Construction firms have contracted over the past 5 years. Some organisations suggest over 90k construction workers are on the dole, excluding construction professionals. Any increase in activity may lead to a hardening of tender rates (as is happening currently) and consequent increase in sales prices. Materials costs have continued to rise over the intervening period as most of our building material and components are imported. The supply of cheap affordable sites to the market has been restricted by NAMA.

There are a number of factors other than market demand that affect building supply. Here are three:

  1. Commencements: paper commencement figures where notice has been given to local authorities of the start of construction have halved since the implementation of the new building  regulations in March. This fall-off has been masked somewhat due to increased levels for January and February- owners and builders getting started (on paper) before the increased costs of S.I.9 kicked in. We are set, if the trend continues, to have little or no increase on construction output from last year, a historic low. We have commented on detailed figures in the blog previously (see link below).
  2. Planning application levels for residential projects are still at historic lows. Even if these figures increased, a realistic timescale from lodgment of a planning application to completion of one house would be in the region of 15 months- close to the end of the lifetime of this government (see link below).
  3. Existing Planning Permissions for complex phased speculative developments may not be appropriate to the current market. There appears to be an excess of apartment planning permissions etc. The planning process, including 3rd party appeals, additional information submissions etc, particularly multi-unit developments, have a longer lead-in time than one-off houses- up to 24 months. It is the same problem as these sites will not provide dwellings for some time. Some of these permissions pre-date Part L of the regulations 2011 and will require significant amendment and revisions.

link2plancomencements.pdf [Converted]

 Commencement notices 2014 (source Link2Plans link:)

The current rental problem in Dublin could have been forecast earlier and measures introduced to allow for the lead-in time for dwellings to ‘come on stream’. Construction is a cyclical business- prepare for the upturn. Our current government are simply out of time to impact on a rental bubble, if one indeed exists. To improve our sovereign rating (and NAMA’s performance) and the banks’ balance sheets an increase in property prices is set to be “pumped” higher in the media. Another unforseen ‘benefit’ to increasing house prices may be the desirability for banks to foreclose and dispose of properties whose owners are in distress.

In the middle of all this we have a new (same) building control self-certification system that imposes higher costs and onerous liabilities on all concerned with little additional consumer protection. This is further restricting supply and creating a drag on the fragile recovery the industry is experiencing at present.

All-in-all not a great time for consumers.

Expect a lot more talk, and little action.

Editorials and articles referred to in the above opinion piece:

Other posts of interest:

Continuing Collapse in Commencement Notices: Building Register – 5th August 2014

Required housing supply estimates and creating supply | Ireland after NAMA

CSO: (Q1 2014) planning permissions for dwellings -30% drop

Irish Times: Dramatic fall in number of buildings being started

‘Recovery’ is Still Worse than the 1980s Crisis

SI.9 and Part L | Are specialist ancillary certifiers needed? Part 1

by Bregs Blog admin team

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The following opinion piece was submitted by registered architect and Passivhaus Designer Mark Stephens on August 27th 2014.

I have recently submitted my first Commencement Notice under S.I.9 for a new house in Co. Mayo. The following opinion piece concerns ensuring compliance with Part L of the Building Regulations:

The only way numerically (currently) to assess conformance with Part L of the Building Regulations is via the Dwelling Energy Assessment Procedure (DEAP) software. It is this software that allows the user to input the following:

  • Property Details
  • Property Dimensions
  • Ventilation details (Chimneys, ventilation type, air tightness etc…)
  • Building elements (Construction types, u values areas etc…)
  • Water heating
  • Lighting

The software on completion can give conformity results on U-values, renewables, primary energy use and CO2 emissions. The conformity with the Building Regulations is given in a straightforward green check (tick) or red cross. The software can be used by anyone but it is only a registered (with SEAI) BER Assessor that can issue BER certificates; it is an offence for persons not registered with SEAI as BER assessors to purport to carry out a BER assessment service for the purposes of the Regulations.

The purpose of this opinion piece is not to highlight the deficiencies of the DEAP software or its use as the only software available (in Ireland) to ensure conformance. Instead it is trying to highlight a problem concerning certification to ensure compliance as part of S.I.9.

This problem may be better understood if we draw an analogy with Structural Engineers. It is the Structural Engineer as ‘Ancillary Certifier’ that certifies at ‘Design’ stage the following:

We confirm that our plans, calculations, specifications and particulars … have been prepared to demonstrate compliance with the requirements of the Second Schedule of the Building Regulations…

It is understood that the Architect may not have the same skill, training and expertise with regard to structural design as a Structural Engineer who is relied upon to produce the “plans, calculations, specifications and particulars” to ensure compliance with the requirements of the Second Schedule of the Building Regulations for the structural integrity of the building.

This responsibility continues through to completion when the Structural Engineer prepares an Inspection Plan (in accordance with the “Code of Practice for Inspecting and Certifying Buildings and Works”) and based on this together with the ‘Design’ certificate the Structural Engineer (as Ancillary Certifier) certifies that the elements they designed/specified are in compliance with the requirements of the Second Schedule of the Building Regulations.

By comparison if we examine Compliance with Part L, it is now sufficiently complex to require a separate consultant. The Design and Completion certification for Part L can be met by using Ancillary Certificates that are completed by ‘Specialists or unregistered consultants‘ i.e. Registered BER assessors. These certificates already exist so there should be no problem with them being provided by BER assessors.

Unfortunately I was rebuked when I requested the BER Assessor to inspect the relevant parts to ensure compliance with Part L; I was informed that this is the Architect’s work but as we have seen this is now a specialist consultancy.

Surely in this specialist world and where ensuring Part L compliance is so critical that the persons who are undertaking the calculations to ensure compliance should shoulder some of the responsibility on Completion, through inspections, to ensure that the building does in fact comply?

It is not as if the BER assessors do not have the requisite Professional Indemnity Insurance to cover their work; SEAI requires, as mandatory, that each BER Assessor and/or each BER Assessor’s principal takes out professional indemnity insurance with a minimum limit of €1,300,000.

All of the Engineers Ireland Certificates (including Ancillary Certificates by Specialists or unregistered consultants can be found here (see link)

Other posts related to this topic:

Design Certifiers – 3 things about certifying Part L… 

Why the design certifier and architect need third party building fabric assessments

Opinion piece: new building regulations and materials risk analysis

Dispensations and Transition Arrangements

Practical Post 10: No retrospective compliance – BC(A)R SI.9

Practical Post 13: Duties & conflicts- BC(A)R SI.9 

Design Certifiers – 3 things about certifying Part L…

by Bregs Blog admin team

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Design Certifiers- 3 things you probably do not know about certifying Part L on even the smallest project such as a kitchen extension…

1. The Acceptable Construction Details (ACD) published by the Department of the Environment may not be Part L compliant (e.g. Frsi changed in February 2014, ACD not updated in 2011 etc).  See DECLG link here:

DECLG Supplementary Documents

2. A Dwelling Energy Assessment Procedure (DEAP) may not be enough to meet the Part L requirements for dwellings (e.g. surface temperature missing).  Read SEAI link here:

SEAI- How_should_thermal_bridging_be_accounted_for_in_DEAP

3. Three dimensional calculations may be required at junctions and there are only two (yes TWO) people in Ireland qualified to do this.  Read here:

NSAI- our-services: certification/agrement-certification- thermal-modellers-scheme

In the event of any problem arising on a project in relation to the conservation of fuel and energy e.g. internal mould growth or higher than expected energy bills it is likely that the building owner will seek redress against the individual who certified compliance with Part L of the Building Regulations e.g. a Design and/or Assigned Certifier.  Failure to have dealt fully with the above three points is very likely to be used to demonstrate prima facie evidence in any legal action that the certifier is liable for the defect.  There will be no liability accruing to the builder who only has to build in accordance with drawings.

Many stakeholders in the building industry have been aware of this anomaly since 2011 although no action has been taken by the Department of the Environment or the associated professional bodies to address the issue.  The situation has been exacerbated by the introduction of the Building Control (Amendment) Regulations earlier this year which has placed new and onerous liability on individual certifiers involved on building projects.

There are no provisions in S.I.9 for transition arrangements or conflicts within the technical guidance documents (TGD’s).  Quote from our previous legal post: “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…” …the DECLG need to review the word “certify” as it is “an absolute“. (see post here:)

If you are not sure about any of these issues and how they impact on current projects and roles, we suggest you contact your representative body.

________

Other posts related to this topic:

Why the design certifier and architect need third party building fabric assessments

Opinion piece: new building regulations and materials risk analysis

Dispensations and Transition Arrangements

Practical Post 10: No retrospective compliance – BC(A)R SI.9

Practical Post 13: Duties & conflicts- BC(A)R SI.9 

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NOTE: This series of posts is not meant to undermine or be in opposition to any professional advice from registered representative bodies: rather it is to offer additional technical aids to those that find themselves in the position of having to deal with SI.9 in it’s current form at present. As with all information posted on the Blog we urge all practitioners to check with their respective professional bodies before assuming any roles or duties under Building Control (Amendment) regulation (SI.9 of 2014). 

 

BReg Blog @ 150,000 views

by Bregs Blog admin team

150k

From when we launched at the end of November 2013, it took 6 months for us to hit 75,000 views. We find ourselves at double that figure, 150,000 views, 3 months later on the 26th August 2014. This month we had our single biggest day for visitors to the site with over 1,550 views in one day. Our unique viewers could now fill the Lansdowne Road stadium an amazing 3 times over!

To acknowledge this milestone we have listed some of the more interesting BReg Blog quotes from the past few months of BC(A)R SI.9

I believe that the language which is used in the proposed amendments is extraordinarily loose and vague. In many cases the meaning if the certificates in their amended form is unclear… any lack of clarity is a recipe for disaster.” Denis McDonald SC 4 December 2013 (read full text here).

I cannot help but feel Environment and Local Government Minister Phil Hogan and his Department have failed utterly to learn the lessons of Priory Hall” Graham Usher former Priory Hall resident (read full text)

I am concerned about the potential for costs to be exploitative initially. The same thing happened in respect of the building energy regulations introduced several years ago… People were charged between €3,000 and €4,000 for certification inspections that cost €150 in the market. The professions have tended to jump on the bandwagon to exploit the customer for what they can get…” Phil Hogan 12 March 2014 (read full text here).

There are no new legal rights or remedies for consumers created by BCAR 2014” Deirdre Ni Fhloinn solicitor 14 March 2014 (read full text here). 

You are fully aware that all consumer groups were excluded from any key stakeholder meetings since mid 2012…You have stated your Department is in discussion with us and we have not risen any objections. This is a grave misrepresentation of our organisation and the interests of all self-builders in the Seanad. We would support any independent inquiry into these statements.” Shane McCloud, Irish Association of Self Builders 11 April 2014 (see full text here).

professional bodies making outlandish quotationsnot allow any body to think this will be an easy way to financial extortion, make easy money” Phil Hogan 10 April 2014 (read full text here)

To be informed now by Mr Hogan that in spite of being deemed to be qualified and competent by the CIAT and the RIAI, I am now a “draftsman” and that “the new building regulations will make it more difficult for unqualified people to pass themselves off as construction professionals” is offensive and potentially catastrophic to the livelihoods of many Architectural Technologists” Brian Maher AT 16 April 2014  (read full text here).

” The Minister’s system of Assigned Certifiers will crack up within the next couple of years… Does the Minister honestly believe the architect will employ someone to be on site continuously to check that things are done right?” Mick Wallace 17 June 2014 (read full text here).

The big elephant in the room again is that while the Minister has stated there is a facility for third-party checks, the major problem is the local authority lacks the facility, the manpower and the money to be a serious third party that checks to ensure everyone is behaving well.” Mick Wallace 1 July 2014 (see full text here).

There are penalties already under the new building regulations, everything must be signed off by a competent Assignee, who can only be an architect, a building surveyor or an engineer, and in signing off ON BEHALF OF THE BUILDER (our emphasis), there are obligations there and they have to stand over those” Tom Parlon 16 July 2014 (read full text here).

to have the notion of overturning these regulations is delusional… We must continue to think like a poet but also act like a professional” (Architecture Ireland). Ciaran O’Connor State Architect July 2014 (see pdf here: COC letter AI)

Our primary concerns with BC(A)R include:

  • Lack of appropriate independent oversight – to support those tasked with compliance
  • Absence of mandatory project insurance – in line with international best practice.
  • Inadequate timescale – to ensure the supporting systems and documentation are in place. This is why the RIAI called for a deferral”  Robin Mandal, President of the RIAI, 4 June 2014 (see full text here)

The Design Certifier certifies the design and the Assigned Certifier certifies the construction. These must comply in full with every aspect of the building regulations. There is no time limit on the certificate. This certificate is to everybody, about everything, for all time. And if an employee signs the certificates, they are liable in equal measure. This is all as clear as day” Eoin O’Cofaigh 12 August 2014 (read full text here).

We would like to thank you for your continuing interest in the issues surrounding the new building regulations, and we have seen viewership increase every month. Many thanks to the admin and editorial team and all of our valued contributors.

The BRegs Blog would love to hear your views on BC(A)R. If you have already written an article on this topic for another publication we would be happy to reproduce that on our Blog if relevant.

New to the topic: don’t know where to begin? start here: SI.9- here do i start?

Other milestones:

125,000 Thanks to our Readers

Thank you- 100,000 views

Bregs Blog: 75,000+ views!

Breg Blog : coming up to 50,000 views!

Practical Post 24: New Part K & J of Building Regulations

by Bregs Blog admin team

24-show-goes-carbon-neutral

Practical Post 24: New Part K & J of Building Regulations

Under the new Building Control (Amendment) Regulation (SI.9 of 2014), dates refer to the Commencement Notice, so architects and registered professionals would be well advised to change to the new standards immediately. This will apply to any other new alterations or amendments to the building regulations that may issue in the near future. One of the problems we have already discussed is the lack of provision for transition arrangements or conflicts in any new Parts of the Regulations.

The Minister published new Part K (Stairways, Ladders, Ramps & Guards) and new Part J (Heat Producing Appliances).

The new Part J is from 1st September 2014. The new Part K comes in from 1st January 2015.

Part J brings in mandatory carbon monoxide detectors (we will be commenting on this in greater detail in a later post).

Architects and other registered professional designing projects need to incorporate the new standards now.

http://www.environ.ie/en/Legislation/DevelopmentandHousing/BuildingStandards/

http://www.environ.ie/en/TGD/

____________

Other Posts in this series:

Practical post 23: Design Build contracts- need a barge pole?

Practical post 22: Change of Owner

Practical post 21: Variations 

For Practical Post Series 1-20

NOTE: This series of posts is not meant to undermine or be in opposition to any professional advice from registered representative bodies: rather it is to offer additional technical aids to those that find themselves in the position of having to deal with SI.9 in it’s current form at present. As with all information posted on the Blog we urge all practitioners to check with their respective professional bodies before assuming any roles or duties under Building Control (Amendment) regulation (SI.9 of 2014). We hope to post a number of these practical posts and list in one area, so home owners, SME’s and professionals can drop in and click on a particular topic to get summary information that may be useful to them while working within these new and difficult regulations. 

Any sign of a Commencement Notice for Priory Hall?

by Bregs Blog admin team

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The following opinion piece was posted by BReg Blog Admin. Team on August 26th 2014.

Any sign of a Commencement Notice for the material alterations?

Work on fixing the Priory Hall apartment development looks like it started this summer. The CIF and others have been very active on Twitter trying to find out whether work has started or not, but Dublin City Council has not responded publicly on this. However by the looks of the site work (certainly enabling work) may have commenced. Is there any sign of a commencement notice?

In our previous post “How to complete ghost estates + Priory Hall?:BC(A)R SI.9” we looked at the difficulties confronting local authorities in finishing ‘ghost estates’ and also defective housing like Priory Hall under the new building regulations.

Quote from post: “We will follow the progress of Priory Hall with interest in the weeks ahead to see if the Local Authority tasked with remedial works apply BC(A)R S1.9 in full, or will they seek an exemption… We wonder if any local authority employees are prepared to accept the onerous legal implications of the regulation as noted in the Code of Practice and act as certifiers, or will they tender the professional services to external consultants on this one?

The issue remains of personal liability for certifiers in the private and public sector, so professionals employed in Local Authorities and Government agencies may well be very reluctant to take on certifier roles essentially guaranteeing part completed work on projects found to be defective, like Priory Hall. We noted an earlier warning on liability issued by the representative body for architects (RIAI)- see post “3 must-read posts for employees“.

Quote from RIAI bulletin: “Employees acting as Assigned Certifier and Design Certifier may be personally liable in the event that their employer no-longer exists after the demise of the practice. Employees are therefore advised to exercise extreme caution before taking on the roles of Assigned Certifier and Design Certifier.”

There are many questions to be answered about Priory Hall and other publicly funded remedial projects:

  • Has a non CIRI registered contractor been appointed to the project?
  • Has the contract for remedial work been publicly tendered?
  • Who are the Design and Assigned Certifiers (if any) on the project?
  • Will any professional be signing off on this work?
  • What comeback will there be for any future purchasers?
  • Most estate agents are of the view that even with a name change, apartments in this development may be very difficult to sell. Is it more likely that Dublin City Council will use it for accommodating social housing tenants?

It would be ironic if remedial works to Priory Hall were not completed fully under the new building control regulations.

S.I. 9 | Six Month – Call Out

by Bregs Blog admin team

Call Out

S.I. 9 will have been with us six months on 1st September 2014. The BRegs Blog has just celebrated its ninth month in operation and  is fast approaching its 150,000th view. It looks as if August, a normally quiet month, may be one of the busiest months since this blog started in November 2013. This indicates to the BRegs Blog Admin Team that the appetite for information on S.I. 9 and its implications to the construction sector continues to grow. It appears as if the strength of this blog may be its unique range of writers across all spectra of the building industry.

The continuing demand for information has brought on board a whole new cross-section of contributors e.g. the recent BCMS Q+A series and the current Q+A session with the SCSI. We are now planning a series of articles on how different sectors in the industry are coping and adapting to S.I. 9 up to and including Commencement Notice stage as the legislation ends its sixth month in operation (at this point in time it is considered that there are insufficient details available on the impact on construction contracts stage and/or building completion stage to draw any conclusions).

The key groupings being considered for such posts based on stakeholders reading the blog are:

  • Large Firms / Practices e.g. multi-disciplinary consultants
  • Small Firms/ Practices e.g. sole traders
  • Public Sector e.g. Local Authority in-house engineering departments,
  • Commissioning authorities e.g. client bodies such as Government Departments
  • Third Party certifier e.g. providing A.C. / D.C services to other firms
  • Building Control Authorities e.g. BCO roles
  • Legal profession
  • Owners/Developers

If you would like to contribute information on how you are dealing with the legislation please email: bregsforum@gmail.com (names are verified but withheld on request).

Regards,

Bregs Blog Admin Team

Top 7 for 7- August 23rd 2014

by Bregs Blog admin team

In case you missed it here are the top 7 posts read last week- enjoy!

BRegs Blog

top7

Top 7 for 7- August 23rd 2014

Last week was a very busy one on the Breg Blog and the following is a list of the most read posts from the past 7 days.

  • Huge interest again this week in a written paper on professional liability delivered at the recent EGM held on 12th August by the representative body for architects (RIAI).
  • We posted comprehensive answers to readers questions received on the Building Control Management System (BCMS parts 1-3 inclusive). Many thanks again to Mairéad Phelan (BCMS Project Manager) for her prompt and informative answers to our combined list of questions.
  • Practical issues also figured with readers questions on demolition and enabling works in our post on demolition and SI.9. We also posted an interesting published letter to the editor on defective materials.
  • More opinion and observation following the RIAI EGM was well read this week also in our post “SI.9 is Defective- RIAI…

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Practical post 23: Design Build contracts- need a barge pole?

by Bregs Blog admin team

man-with-stop-sign-in-front-of-his-face

Practical post 23: Design Build contracts- need a barge pole?

Architects (and engineers) who work in the design stage only of design-build contracts would be well advised to steer clear of the the site during the construction phase of the contract. We previously asked the question were developers off the hook under the new regulations –

Opinion: Are builders + developers off the hook with BCAR?” 

In order to protect yourself from future liability, you should make very clear that you have no inspection duties and avoid being drawn onto site or into the project later. This is of particular importance if a developer is employing their own in-house certifier at construction stage for the Assigned Certifier role.

This is so that you can stand in the dock, if ever there is a claim, and confirm that you never walked onto the site, never overlooked  the (missing) dpc, never touched the (too low) handrail on the stairs, never had any concerns about the general standard of workmanship.

As a further safeguard, make sure that your Design Certificate (if you provide one) is dated before the Commencement Notice.

We previously noted the problems attaching to Design Certifier roles and the requirement to upload any design changes (changes to specifications and materials etc) by the design certifier during construction. There is currently no provision for this upload on the BCMS system by the Design Certifier.

The Law Society and the professional bodies had indicated that partial services appointments (where the architect does the drawings but not the site stage) would be a thing of the past. It seems more likely that the ‘partial services’ will be reduced even further by the developers engaging their own staff to sign the Certs.

____________

Other Posts in this series:

Practical post 22: Change of Owner

Practical post 21: Variations

For Practical Post Series 1-20

NOTE: This series of posts is not meant to undermine or be in opposition to any professional advice from registered representative bodies: rather it is to offer additional technical aids to those that find themselves in the unenviable position of having to deal with SI.9 in it’s current form at present. As with all information posted on the Blog we urge all practitioners to check with their respective professional bodies before assuming any roles or duties under Building Control (Amendment) regulation (SI.9 of 2014). We hope to post a number of these practical posts and list in one area, so home owners, SME’s and professionals can drop in and click on a particular topic to get summary information that may be useful to them while working within these new and difficult regulations. 

SCSI + S.I. 9 | 20 Questions

by Bregs Blog admin team

SCSI Questions

President

Society of Chartered Surveyors Ireland

38 Merrion Square

Dublin 2

Open Letter: by email

Dear Ms. Daly,

The BRegs Blog is writing to you on behalf of its 1,200 email subscribers, 700 Twitter followers and 300 Facebook followers. The BRegs Blog (Link:) was launched on 21 November 2013 to debate and share information on the Building Control (Amendment) Regulations (BCAR). It has since become a ‘must-go-to’ open source for advice and opinion in relation to BCAR / S.I. 9 for anyone involved with the construction industry. It has uploaded 500+ posts, received 2000+ readers’ comments and registered almost 150,000 unique views in that time – not bad for a blog about Building Control!

Contributions come from a unique collaboration of economists, politicians, solicitors, journalists, civil servants, building control officers, builders, building owners, surveyors, engineers, architectural technologists and architects. We have posted links to several items of interest that the SCSI has published such as the excellent ‘Guide to BC(A)R S.I.9

This week the BRegs Blog ran a series of 35 Questions and Answers that were very kindly facilitated by Maireád Phelan, Building Control Management System, Project Manager. This was a great opportunity for disseminating such information efficiently to an interested audience in the construction industry.

Links to the three BCMS Q+A here:

Post1: General Issues:

Post2 – I.T. Issues:

Post 3 – Process Issues:

It is the BRegs Blog’s hope to continue with a similar series of  Q+A posts with the other BC(A)R stakeholders such as the SCSI, CIF, RIAI and ACEI. Earlier this week we posted a call out for questions on the SCSI (Link here: ) and we received over 50 responses which we have collated into the following 20 questions. We hope that the SCSI will now be able to answer all or as many of these as possible so that the BRegs Blog can post the responses for our readers.

Thanking you in advance for your cooperation.

Yours faithfully,

BRegs Blog Admin. Team

QUESTIONS:

Q.1 How many registered building surveyor members does the SCSI have that are qualified to undertake the roles of Design and Assigned Certifier as specified in BC(A)R S.I. 9?

Q.2 Has the number of registered building surveyor members of the SCSI, as at item 1 above, increased since the introduction of BC(A)R?

Q.3 Has the SCSI provided new fee agreements for SCSI members acting as Design and/or Assigned Certifiers?

Q.4 Has the SCSI provided any advice on fees or required resources associated with undertaking the roles of Design and Assigned Certifiers?

Q.5 Has the SCSI provided a typical Inspection Plan to its members?

Q.6 Has the SCSI provided any specific advice to its members in relation to their acting as Design Certifiers in terms of specific qualifications e.g. certifying compliance with fRsi to Part L/F of the Building Regulations for residential extensions?

Q.7 It appears that many large firms are appointing third parties certifiers to undertake the roles of Design and Assigned Certifiers. Does the SCSI have any specific advice for its members undertaking such roles?

Q.8 Has the SCSI a list of their members who are available to act as Design or Assigned Certifier on projects where they are not retained as project manager/lead designer/employer’s representative? If the SCSI has not drawn up such a list would they consider doing so and make this list available to the public?

Q.9 Have SCSI members reported any specific implementation problems with BC(A)R S.I.9?

Q.10 Has the SCSI got a policy on Latent Defects Insurance in relation to BC(A)R  S.I.9 and consumer protection?

Q.11 Has the SCSI obtained an independent legal opinion from a barrister on the liability implications of registered surveyors acting as Design or Assigned Certifier or has it relied on legal opinions obtained by other stakeholders?

Q.12 If the SCSI has obtained legal advice as at item 11 above, has this advice been published or does it intend to do so?

Q.13 Other than the joint RIAI/ACEI/SCSI advice issued in relation to ancillary certificates, has the SCSI published other such advice or does it intend to do so?

Q.14 What is the current position of the SCSI regarding the legality of self building?

Q.15 Does the SCSI intend to host an EGM or other meeting to debate the views of its members on BC(A)R similar to the recent RIAI EGM called to revoke S.I. 9.

Q.16 Would the SCSI consider surveying its membership to establish whether they would support calls by other stakeholders for further DECLG action in relation to S.I. 9?

Q.17 Does the SCSI agree with the CIF interpretation of S.I. 9 that the Assigned Certifier takes over all responsibility for defective workmanship by the building contractor by signing a Completion Certificate?

Q.18 Does the SCSI have any views on the assessment procedure for building contractors being listed on CIRI?

Q.19 Has the SCSI raised or does it intend to raise any issues about BC(A)R S.I 9 with the recently appointed Minister for the Environment, Alan Kelly T.D.?

Q.20 Does the SCSI have an opinion on the adequacy of building owners’ understanding of BC(A)R S.I. 9? Does the SCSI feel that there is a need for a comprehensive publicity campaign by the DECLG and/or other stakeholders? Note: the BRegs Blog compliments the SCSI for their effort in this regard to date.

 

SI9- where do I start?

by Mark Stephens

If you are a new visitor to BReg blog this post is a useful starting point to get going on some of the issues associated with BCAR SI.9

BRegs Blog

 IngoMaurer_Zettelz6_01

SI9- where do I start?

New to SI.9- Confused? Following on from an influx of new readers to Bregs Blog we received a number of comments like “help- where do I start?“. We have compiled a list of our most read posts with headings to guide readers. You can delve into each topic in depth as most posts have “other posts of interests” at the bottom. With over 500 posts since we started in November 2013 along with industry alerts, getting the specific information you need on one topic can be difficult at the best of times.

Type in a key-word search and relevant posts will pop up in reverse chronological order. We also have four “archive” posts that allow readers to scroll down through the first months of posts on Bregs blog from November 2013 to February 2014  (see end of list).

Don’t forget you can configure bulletins to come to you daly or weekly, see post: Note to readers…

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Continuing Collapse in Commencement Notices: Building Register – 5th August 2014

by Bregs Blog admin team

In case you missed it here’s an update on the latest figures from the BCMS on the continued fall in commencement notices

BRegs Blog

Coastal erosion

The worrying trend in stalled building starts since the introduction of new Building Regulations earlier this year appears to be continuing. The Local Government Management Agency (LGMA) published the latest edition of the Building Register on Tuesday 5th August 2014 at 09.49 a.m. The Building Register records all of the validated Commencement Notices or ‘building starts’ received by the 34 Building Control Authorities throughout Ireland on the Building Control Management System (BCMS).

The Building Register now records a figure of 1645 as the total number of validated Commencement Notices received over the past five months (22 weeks) since the introduction of the BCMS on 1st March 2014. This figure equates with an average of approximately 75 Commencement Notices per week or a projection of 3900 for a year. This would represent approximately 50% of the 7,456 Commencement Notices submitted in 2013.

While the rush to submit Commencement Notices…

View original post 245 more words

Top 7 for 7- August 23rd 2014

by Bregs Blog admin team

top7

Top 7 for 7- August 23rd 2014

Last week was a very busy one on the Breg Blog and the following is a list of the most read posts from the past 7 days.

  • Huge interest again this week in a written paper on professional liability delivered at the recent EGM held on 12th August by the representative body for architects (RIAI).
  • We posted comprehensive answers to readers questions received on the Building Control Management System (BCMS parts 1-3 inclusive). Many thanks again to Mairéad Phelan (BCMS Project Manager) for her prompt and informative answers to our combined list of questions.
  • Practical issues also figured with readers questions on demolition and enabling works in our post on demolition and SI.9. We also posted an interesting published letter to the editor on defective materials.
  • More opinion and observation following the RIAI EGM was well read this week also in our post “SI.9 is Defective- RIAI EGM Consensus” and the  summary report from attendees of the event itself was also very popular.

Posts listed in order of reader poplarity. Enjoy!

Friday Follow | Eoin O’Cofaigh FRIAI

BCMS Q+A: Part 3 | Process Issues

Demolition and S.I. 9

SI.9 Is Defective | RIAI EGM Consensus

BCMS | Donegal County Council

A scenario that would leave thousands of homes ruined | Irish Examiner

News Alert | RIAI EGM Report

World Bank Rankings, Ireland & SI.9 – Look Back 1

by Bregs Blog admin team

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This is the first in a series “Look Back” Posts which will re-publish older papers and opinion pieces that are still relevant  to the  evolving situation post-implementation of BC(A)R SI.9. Some of our more recent followers and readers of the Breg blog and may have missed some previous posts of interest in our 500+ post archive.

In this first post we look again at Ireland and the World Bank Rankings.

The rankings are due to be updated in September 2014 and we wonder whether Ireland’s international ranking for “Dealing with construction permits” has improved from 115th place out of 189 countries surveyed.

The post below was first published on Breg blog on 9th January 2014.

______________

World Bank rankings &amp; BC(A)R SI.9

World-Bank-Headquarters

The World Bank “Doing Business” Report 2014 was mentioned by Minister Richard Bruton in January of 2014 (Irish Times 5/01/14). The construction industry was specifically mentioned as one key area for improvement. Currently we rank 115th out of 189 countries in “Dealing with construction permits”. The UK ranks 27th. Based on the World Bank example of a 1300 SqM production/warehouse building, the cost of statutory permissions (planning and building control) in the UK are less than 15% the cost of our system here. A key cost of an integral component to our recovery, foreign direct investment and job creation (warehouse & manufacturing space) is over 5 times more expensive here than across the water.

The cost to obtain all relevant statutory permissions for this one building type in the UK is a little over €19,000 and takes much less time. This cost includes 100% independent building inspections by a licensed building inspector. The cost for a similar building in Ireland is over €130,000 (incl. planning levies) and takes considerably longer.

In 2012 the UK looked into improving their building control system, already frequently quoted in the World Bank report as being one of the better examples in the world. The “Communities and Local Government: Proposed changes to the building control system – Consultation stage impact assessment” (download and read here) produced in 2012, comprehensively examined several options to revise and change the UK building control system. Their existing system, unlike ours, already has comprehensive local authority independent inspections (with 80% of housing backed by warranty). Our own regulatory impact assessment was quite inadequate in comparison (see post ” Inadequate Regulatory assessment for SI.80″ here).

The UK report also examined the Irish 100% self-certification system as a option but discounted this due to considerable extra cost to the consumer and to the wider industry over their existing system of independent local authority (and licensed private) inspections.

Rather than improving efficiency and reducing costs, the new Building Control (Amendment) Regulation, SI9 may delay projects by up to 21 more days on completion, cost significantly more and give no added benefit to the consumer. (See previous posts on costs here). One wonders where our ranking will slide to by 2015.

UK- cost and time to get permits or warehouse: detailed breakdown

IRELAND- cost and time to get permits or warehouse: detailed breakdown

The above opinion piece was submitted by Maoilíosa Mel Reynolds on 9th January 2014. 

 

Other posts of interest:

BREGS Blog Archive 4- FEBRUARY 2014

BREGS Blog Archive 3- JANUARY 2014

BREGS Blog Archive 2- DECEMBER 2013

BREGS Blog Archive 1- NOVEMBER 2013

 

Framework for Building Control Authorities – Version 1: July 2014

by Bregs Blog admin team

26927441-baef-4cc7-a09b-140f81a80edd

The BRegs Blog received a copy of a document ‘Framework for Building Control Authorities’ that was circulated earlier this month by one of the professional bodies involved with S.I. 9 to its members. The document appears to have been prepared by the County and City Management Association (CCMA). The  CCMA is the “representative voice” of the local government management network. Its  members are Chief Executives of the County and City Councils and the Assistant Chief Executives of Dublin City Council .  It is a non-statutory body that works to ensure that the influence of local authority Chief Executives is brought to bear on the development and implementation of relevant policy.

The document had been scheduled for issue in September 2014 (Q3). It is described as Version 1 and has not yet been uploaded onto the CCMA or Department of the Environment’s websites so the BRegs Blog is unsure of its official status and whether it is a draft document being circulated for comment. However it may be of interest to anyone involved with the Building Control Regulations as to how the CCMA is thinking about the issues. The BRegs Blog Admin. Team would welcome any comments our readers may have on this document (Link:)

________________

FRAMEWORK FOR BUILDING CONTROL AUTHORITIES – VERSION 1.0 JULY 2014

The purpose of the Framework is to provide guidance for Building Control Authorities (BCAs) with respect to undertaking their functions under the Building Control Acts 1990 to 2007 and the Building Control Regulations 1997 to 2014. In particular, the framework provides guidance in respect to:

(a) standardisation and co-ordination nationally;

(b) processing and validation of commencement notices and associated documentation;

(c) inspections and assessments during construction;

(d) processing and validation of completion certificates and associated documentation;

(e) Fire Safety Certificates; and

(f) Disability Access Certificates

Beyond their statutory function under the Building Control Acts, BCAs are also the designated enforcement authorities for the purposes of ensuring compliance with other legislation as follows:

  • Marketing of Construction Products in line with EU (Construction Product) Regulations 2013 (SI No. 225 of 2013); Appendix I
  • Building Energy Rating Certificates for buildings in line with the EU (Energy Performance of Buildings) Regulations 2012 (SI No. 243 of 2012); Appendix II
  • Registration of multi-storey buildings for the purposes of the Local Government (Multistorey Buildings) Act 1988

PDF version: Framework for Building Control Authorities July 2014

Other posts of interest:

ALERT: Cork CoCo guide to BC(A)R SI.9

A scenario that would leave thousands of homes ruined | Irish Examiner

by Bregs Blog admin team

HouseForSaleSign_large

The following letter to the editor by Lester Naughton MRIAI was published in the Irish Examiner on Wednesday 20th August 2014. Link to original letter here:

Extract:

______

A scenario that would leave thousands of homes ruined | Irish Examiner

“New housing starts at zero and unemployment up 100,000”. This is the headline that your paper may well be printing in the future and I will explain why with a story.

Mary and Paraic are celebrating outside the High Court popping champagne. The judge has just found against the architect who certified their new house. At first, they thought pyrite was causing the structural problems and the architect thought he would not be found liable as he had demanded certificates confirming the absence of pyrite. However it turned out the problem was the steel reinforcing bars used in the concrete. The architect hadn’t thought of seeking certification from the supplier and the judge found the architect had certified the building and was therefore responsible. Mary and Paraic are paid out by the architects’ insurers.

In such a scenario, if such problems turned out to be widespread and thousands of houses are ruined, people will take their cases to the courts and will receive similar judgments. But due to the judgments, it will prove impossible for professionals to renew their insurance. Many professionals will be bankrupted and many homeowners will receive little or no compensation.

Sir I doubt you will find a single architect or lawyer who will not agree this is a plausible scenario. You will only perhaps find disagreement as to its likelihood. Our legislators have let us all down once again.

Lester Naughton BArch MRIAI
Drimmavouhaun
Moycullen
Co Galway

The €64,000 question: How big is the pyrite problem?

by Bregs Blog admin team

image001

The € 64,000 question: Is it really cheaper to have no regulation?

The BRegs Blog was asked about the scale of the pyrite problem by a reader and we have attempted to establish some ballpark figures for the cost of some of its remediation as follows:

  • There have been 520 applications so far to the Pyrite Remediation Scheme (source: Dáil statements 16th July 2014- see link below)
  • The first 50 homes cost €3.2 m so this indicates an average cost per home of €64,000 each (source: Irish Times article 19.08.2014- see link below)
  • The Pyrite Remediation Scheme EXCLUDES work from 2014 so S.I. 9 cannot be covered. Applications are still being accepted so there may be even more. The SCSI suggested that the eventual figure could be almost 20 times this figure i.e. more than 10,000 homes may be affected by pyrite contamination (source: SCSI- see note below) 
  • Based on these figures, to date, 520 homes may cost in the region of €33,280,000

In excess of €33 million of taxpayers money will have to be spent to fix one instance of a defective building product (for the 520 applications to date)! In addition the scheme only covers foundations in homes where there is no other means of redress e.g. where insurers refused to pay out or the builder has gone bust. It also excludes pay-outs made by private sector insurers to date for pyrite remedial works.

Local Authorities are responsible for market surveillance of building products. However they only react to problems as they arise as they do not have adequate resources to proactively police quarries and suppliers. That may be considered acceptable, for now, because under the new building regulations introduced in March 2014 an Assigned Certifier will now certify Part D (Materials & Workmanship) and sign off on, and assume  the risk, for pyrites .

Assigned Certifiers may think that their Professional Indemnity Insurance (PII) policies will pay for such claims. One PII policy will never stretch to the scale of another material problem like pyrite* or even a single building like Priory Hall** that will cost in excess of € 27 m** to rectify. With such a weak system of redress, the next building failure will inevitably fall back on the tax payer. Would it not be better to invest in better regulation of the supply and manufacture of building materials?

*Pyrite remediation at €64,000+ per house and there could be up to 10,000 pre-2012 properties affected (up to €640 million).

** Priory Hall refurbishment at €140,000+ per apartment (at least €27 million).

Sources mentioned in the above post:

Pyrite Remediation Programme…: 16 Jul 2014: Seanad debates (KildareStreet.com)

Irish Times, August 19th 2014: 6,000 social housing units to be provided this year

Irish Times, August 1st 2014: Supreme Court makes final Priory Hall orders (185 apartments at estimated €27m for repairs)

IMG_3122

Other posts on this topic:

Are Design and Assigned Certifiers risking professional suicide with Pyrite and S.I.9?

Was pyrite discovered in concrete blocks in 2013?

Pyrite & SI.9- what happens now?

The cost of a Solution to BC(A)R SI.9? 

Pyrite News roundup- week ending 13th June

SI.9 Is Defective | RIAI EGM Consensus

by Bregs Blog admin team

Broken-Chain-Link

Following an editorial team meeting the BRegs Blog have decided not to publish attributed comments made at last week’s Extraordinary General Meeting held by the RIAI, the representative body for architects (Link to earlier notice of withdrawal post:); the reason being that speakers were not aware in advance that comments made on the night might be published. It is feared such publication could impact on the openness and frankness, witnessed on the night of the debate, at any future such gatherings. The BRegs Blog Admin. Team have decided to give some more detail of the event instead.

It was clear, to all in attendance, that the single most important issue to emerge was the clearly articulated view among the overwhelming majority of those present that the S.I.9 legislation is defective. Speaker after speaker, including representatives of many large architectural firms outlined the manifest problems with S.I 9 and their concerns about being able to implement the legislation without unsustainable risk. No one spoke in favour of S.I. 9 which is in clear contrast to the impression that had been given by some RIAI council and staff to date that S.I.9 had been broadly accepted by the architectural profession.

Given this apparent consensus view at the EGM, discussion centered on what would be the most appropriate and effective method for reversing the S.I.9 legislation. The alternative vote for a deferral by three-months of the motion for a call to revoke S.I.9 was agreed to allow further development of an alternative building control system. This alternative building control system is one underpinned by third party independent inspections as opposed to continuing the current system of self-certification. It was a working paper that the EGM was advised had been discussed at the July RIAI Council meeting. The background to the development of this paper over the last number of years was explained on the night. A previous post on the BRegs Blog (Link to “A Better Way for BCAR / S.I.9:) contains the backbone to the current adopted ‘Change’ paper which is now being discussed further by the current RIAI Council. Within the three month time-frame it is expected that the ‘Change’ paper will be circulated to members for review prior to the motion to revoke S.I. 9 being voted on at another EGM to be held by 12th November 2014.

Of surprise to many members on the night was the fact that a large number of the elected RIAI council members seemed to share the view that S.I.9 is indeed defective and it was alleged, carries toxic levels of liability for the new certifier roles. The spectrum of opinion on Council ranged from some who think S.I.9 may be “fixed” to others who feel it is unworkable and needs to be completely scrapped. All identified serious  implementation, insurance and legal problems with the regulations.

The question that anyone associated with Building Control must be asking now is what impact will this development have on the implementation of S.I. 9 and what action will be taken by the executive, staff and elected council of the RIAI in response to this mandate from their members? Many must also wonder what does the newly appointed Minister for the Environment, Alan Kelly T.D. make of it all?

For your information we list out recent opinion pieces by current elected RIAI council members here, all looking at various defects in SI.9:

Friday Follow | Eoin O’Cofaigh FRIAI

S.I.9 and Employees: Eoin O’Morain FRIAI

S.I. 9 and Insurance Claims: Deirdre Lennon MRIAI

S.I. 9 and Construction Products: Orla Hegarty MRIAI RIBA

Vivian Cummins MRIAI: Are small architectural practices under threat from S.I.9?

Shrapnel and Spin – Caomhán Murphy MRIAI

Eoin O’Cofaigh: missed opportunity? BC(A)R SI.9

News Alert | RIAI EGM Report

In addition to the opinion pieces listed above by current RIAI council members a number of open letters were submitted to the Bregs Blog which may be of interest to readers – we will list these in a separate  post.

SCSI and S.I.9- submit your questions.

by Bregs Blog admin team

In case you missed it there is still time to submit BC(A)R SI.9 questions to the Blog. We will be sending queries received to the Society of Chartered Surveyors Ireland (SCSI) this week.

BRegs Blog

Question-marks-(1)

SCSI and S.I.9- Everything you don’t know about the Society of Chartered Surveyors Ireland (SCSI) and now you can ask!

Following the success to our call out for questions and the detailed response to them from the BCMS, which we are publishing this week, the BRegs Blog decided to conduct a similar exercise for the other stakeholder groups involved with S.I. 9. The next group that we are publishing the call out for questions on is the SCSI. This is an opportunity particularly for those in the other stakeholder groups to find out how the SCSI and its members are getting on with S.I. 9 and related matters.

In the interests of efficiency the BRegs Blog now intends to submit an open letter with a series of questions to the SCSI to be answered on behalf of our readers. We will publish the responses so that they may be shared…

View original post 91 more words

BCMS Q+A: Part 3 | Process Issues

by Bregs Blog admin team

q and a

This is the third of three posts on the BCMS Question + Answer series. On 7th August 2014 the BRegs Blog posed a series of questions to the Building Control Management System (Link:). These were an edited compilation of questions that we received from our readers. The idea was that it would make for an efficient use of the BCMS resources if they replied to us in one email and we shared the information with our followers through Social Media.

We are very grateful to the BCMS Project Manager for her very swift and comprehensive response. As it is so detailed we decided to publish it as a series of posts linked by the subject matter of the questions to ensure maximum exposure. Monday’s post on general issues may be accessed here (Link:); Tuesday’s post on I.T. issues may be accessed here (Link:). The BRegs Blog welcomes further questions and/or clarifications of the matters raised in this series which we would be happy to put to the BCMS on your behalf.

To summarise the response below  it would appear:

  • There is no formal appeal process if an applicant disagrees with a Building Control Authority’s invalidation of  a Commencement Notice
  • It appears that any change of personnel e.g. the building contractor must be notified by email (not possible online) within 14 days. This is not just advising the BCMS of a change but the new notice of assignment and a new undertaking must be submitted. [BRegs Admin. Team Note: This may be entirely impractical in practice].
  • If a Building Control Authority is made aware that a Commencement Notice was submitted by unqualified persons it will be invalidated
  • The change of Assigned Certifier during the course of the work will merit the particular attention of Building Control Authorities and will likely require further explanation of the circumstances of the change from the Owner. Such changes will be on public record post-Completion.
  • At present there is no ‘red-flagging’ of Commencement Notices which are only determined as Valid or Invalid.

Q.21 Is there any appeal process if a building owner feels that a Commencement Notice was incorrectly invalidated by the BCMS and/or Building Control Authority? If not, is the only redress to take court action and would this be against the BCMS or the Building Control Authority?

Answer;

The Building Control Act 1990-2007 provides for the establishment of Building Control Authorities who have the delegated functions for the purposes of Building Control i.e.; “these Building Control Authorities being in the case of a council of a county, the administrative county and in the case of any other local authority, its administrative area”.

  1. Article 9 of the Building Control Regulations as Amended; sets out clearly the requirements/form of Commencement Notice with, and without supporting compliance documentation.
  2. Article 10 of the Building Control Regulations as Amended; sets out the procedure to be undertaken by the Building Control Authority for the purpose of validation/invalidation.
  3. Under the Building Control Act 1990-2007 there is no appeals process for this the Commencement Notice process; the appeals process provided for provided for under Section 7 being for the specific purpose of;
  4. “( a ) section 4, for a dispensation from, or relaxation of, any requirement of building regulations, or
  5. (b) section 6 (2) ( a ) (ii), for a fire safety certificate, or
  6. (c) section 6 (2) ( a ) (iii), for a certificate of approval,”
  7. However each Building Control Authority is mandated to operate within the fundamental and well established principles of public administration in that the decision-maker in line with natural justice gives fair and genuine consideration in assessing Commencement Notices for the purposes of validation. Judicial review is the procedure open to a party with sufficient interest to review a decision of an administrative body.

The BCMS “Building Control Management System” means the information technology- based system hosted by the Local Government Management Agency and developed to facilitate the electronic administration of building control matters by building control authorities as the preferred means of building control administration;” i.e. a record management system.

Therefore any an interested party having an issue with an administrative decision by a Building Control Authority in relation to a Commencement Notice /7 Day Notice should first seek redress from that Building Control Authority before seeking redress from the Courts.

Q.22 Who is responsible for ensuring that an Assigned Certifier is suitably qualified.

Answer;

Responsibility for compliance with the Building Control Regulations and Building Regulations is ultimately a matter for the owner or builder of a building.

However it should be noted the “Building Control Act 1990 and 2007” and the “Building Control Regulations 1997 to 2014” clearly set out the qualifications required for the Designer and Assigned Certifier and anyone signing a Statutory Form otherwise qualified is clearly acting outside the law.

The Building Control Authorities and the BCMS oversight group is continuously carrying out random oversight of all Commencement Notices/7 Day Notices submitted and have requested clarification of qualifications of Assigned Certifiers in many circumstances. This work is ongoing and such persons will continue to be contacted in circumstances where their qualification to so act is in doubt. This is ultimately in the interest of Building Owners who, should the person identified in the submitted material at Commencement Notice application stage as Assigned Certifier prove not to have the required qualifications to so act, may be unable to use or occupy their building arising from the defective nature of the Commencement Notice application and the subsequent lack of appropriate level of compliance oversight during the works. See also answer to Q.9 below.

Members of the professional organisations have also made representations to the Building Control Authorities and BCMS oversight group regarding qualifications of the “professionals”, appearing on the Statutory Public Register which have been followed up by the individual Local Authorities

Q.23 Does the BCMS check the identities or qualifications of Design and Assigned Certifiers?

Answer;

As per Question 22 above

Q. 24 What action will the BCMS and/or Building Control Authority take if they are made aware that someone acting as a Design or Assigned Certifier is not suitably qualified?

Answer;

Validation of Commencement/7Day Notices is solely based on the assumption that the facts stated in and the attachments forming part of the certificate are true and accurate.

  1. Section 6(4) of the 1990 Act…”Building Control Authority shall not be under a duty to any person to ensure/verify that the:—
    1. building or works to which the certificate/notice relates will, either during the course of the work or when completed, comply with the requirements of Building Regulation or be free from any defect,
    2. certificate complies with the requirements of .. Act or of regulations or orders made under .. Act, or
    3. facts stated in the certificate are true and accurate”.
  2. In the event of a Building Control Authority being made aware that someone acting as a Design or Assigned Certifier not being suitably qualified, then the notices and certificates submitted with this notice could not be deemed to be valid as they would be based on fraudulent information.
  3. Furthermore Article 6A (amendment inserted to Article 6 of principal regulations under S.I. 9 of 2014)  specifically states that “Failure to comply with any requirement under Parts II, III, IIIA, IIIB or IIIC shall be an offence to which section 17(2) of the Act” (Building Control Act 1990 and 2007).
  4. Also, Offences are as set down in Section—“Any person who contravenes (by act or omission) any requirement of this Act or of any order, regulation or notice under this Act shall be guilty of an offence”.

Q.25 Does the time period for notification of a change of builder i.e. 14 days refer to a notification that you intend to change builder or is one expected to provide details of the new contractor within 14 days. The latter may prove difficult in practice and it is noted that failure to do this is an offence? What is the procedure for doing this e.g. can it be done online??

Answer;

In the notice of Assignment of Builder the Owner undertakes to notify the Building Control Authority in writing of any change in the person assigned as Builder of the building or works as notified.

Part II Article 9(3) of the Regulations “If, for whatever reason, having submitted the commencement notice in respect of works or a building subject to paragraph (1)(b), a building owner changes either the person assigned to inspect and certify the works or the assigned builder, then the building owner shall within 14 days notify the building control authority of the change by submitting, electronically or otherwise, the appropriate notices of assignment and forms of undertaking referred to under paragraph (1)(b) reflecting the up-to-date arrangements in this regard” i.e. notify the Building Control Authority within 14 days by submitting a new notice of assignment and a new undertaking.

The facility to do this online through the BCMS will be provided in due course.

At present this new notice of assignment and a new undertaking can be emailed to the Building Control Authority where it will be uploaded to the BCMS and the details recorded on the Statutory Register.

If an applicant is having difficulty they may discuss same with the relevant Building Control Authority.

 Q.26 In the event that the BCMS discover an irregularity in documentation submitted post-validation what action will be taken?

Answer;

It should be noted that the BCMS is not an organisation with any delegation under the Building Control Acts 1990 and 2007.

In the event of the BCMS oversight group discovering an irregularity in the documentation they will notify the relevant Building Control Authorities that have this delegation and the discretion to take whatever action it deems necessary.

Q.27 What is the timescale for validating design changes and/or designs not submitted at commencement notice stage?

Answer;

Validation at Commencement Notice Stage is based on; the requirements of Part II of the Regulations i.e. where applicable the following are submitted to the Building Control Authority prior to commencement:

Commencement Notice application – all sections complete with or without the following;

  1. a)the completed online assessment (which will inform the risk assessment)
  2. b)Preliminary Inspection Plan
  3. c)General Arrangement Drawings
  4. d)plans, specifications and particulars necessary to show how the building work will comply with the requirements of the Building Regulations;
  5. e)Certificate of Compliance (Design) (with a schedule of Ancillary Certificates by members of the design team, who should also sign their certificate);
  6. f)Notice of Assignment by the Building Owner of a Competent Person as Assigned Certifier; and appointment of a competent Builder;
  7. g)Certificate of Undertaking by the Assigned Certifier;
  8. h)Certificate of Undertaking by the Builder; and
  9. i)the appropriate fee.

Validation, carried out by Building Control Authorities at commencement stage, confirms that all the required documentation has been submitted. The material submitted, having being Certified as Compliant by the parties involved, is not required to be technically assessed for this purpose by the Building Control Authority.

The majority of applications will be made on line through the Building Control Management System. The system is set to default to Validation at the end of the statutory 7-day period, if the Building Control Authority does not carry out the process to assess the application as valid or invalid within that period of time.

The Building Control Management System automatically notifies the relevant Building Control Authority on receipt of a completed application for Commencement. Building Control Authorities will keep a watching brief on applications and, in the interest of effective oversight, will examine individual applications within the 7 day validation period.

Design changes are notified in the Annex to the Certificate of Compliance on Completion and may be notified to the Building Control Authority after submission of the valid Commencement Notice during the Construction process by the Assigned Certifier.

Q. 28 Is it possible to resign as Design and/or Assigned Certifier post Commencement Notice validation e.g. in part service appointments to developers who have in house assigned certifiers some design certifiers may be unwilling to continue in the role, particularly if sites are sold on to persons other than the original owner who commissioned and appointed the design certifier. If such cases, what is the process for doing so?

Answer;

Yes it is possible for the Assigned Certifier to relinquish the role for whatever reason. The Assigned Certifiers role is set out in the Code of Practice accompanying S.I. 9 of 2014 i.e. 3.5 Assigned Certifier’s Role which provides termination or relinquishment of their appointment; and 4.7 Change of Assigned Certifier and/or Builder.

The building owner undertakes to notify the Building Control Authority in writing of any change in the person assigned to inspect and certify the building or works as notified in the NOTICE OF ASSIGNMENT OF ASSIGNED CERTIFIER (Notice of Assignment of Person to Inspect and Certify Works).

The facility to do this online through the BCMS will be provided in due course.

At present this new notice of assignment and a new undertaking can be emailed to the Building Control Authority where it will be uploaded to the BCMS and the details recorded on the Statutory Register. The change of Assigned Certifier during the course of the work will merit the particular attention of Building Control Authorities and will likely require further explanation of the circumstances of the change from the Owner. Such changes will be on public record post-Completion.

Q.29 How does one address the situation of a change in Design Certifier mid-project e.g. changing from a Civil Engineer on the piling for an enabling works contract onto an architects as the Design Certifier for a Main Contract. Do such changes have to be notified to the BCMS and if so, how is this done?

Answer;

The “DESIGN CERTIFICATE Form of Certificate of Compliance (Design)” is a required Commencement Notice accompanying document. A project may have many design certifiers with specific competencies who will sign the relevant certificates which are collated as part of the compliance certification by the Assigned Certifier.

It is a matter for each owner, builder, Assigned Certifier etc. to decide how this is done.

Q.30 In instances where Assigned Certifiers become aware of non-compliant work and resign, or where builders are not undertaking recommended remedial works during the course of construction, Assigned Certifiers may have no option but to resign. Is there a responsibility on the Assigned Certifier to notify the BCMS and/or Building Control Authority of such infringements?

Answer;

See Q 23, refer to Code of Practice accompanying S.I. 9 of 2014.

Q.31 Under S.I. 9, and not the Code of Practice, is the submission of a Commencement Notice and accompanying documentation officially considered an ‘application’ or a ‘validation’?

Answer;

A ‘‘commencement notice’’ means a notice referred to in section 6(2)(k) of the Act; i.e. not an “application” or a “validation” i.e. a “notice to building control authorities of the erection of such buildings, or classes of buildings, or the carrying out of such works, or classes of works, as may be specified in the regulations”.

Q .32 There has been speculation that the BCMS is linked to the Revenue Commissioner’s system and may be used to identify tax evasion. If so, why has this been kept secret?

Answer;

There is no connection between the Revenue Commissioners and the BCMS. As all information in government and public service departments are subject to Freedom of Information in accordance with Data Protection requirements, there are no secrets.

Q.33 What rights do those engaging with BCMS have under data protection to see and/or correct personal data and in particular to be made aware of any ‘red flags’ against them and any right of redress?

Answer;

The normal data protection rules apply to the BCMS.

Q.34 What advice, if any, was sought in relation to Freedom of Information (by any future building owners) and Intellectual Property and confidentiality of information loaded to the BCMS.

Answer;

The normal Freedom of Information rules apply to the BCMS. Precedent exists through the well-established online access to drawings and associated information provided for the purposes of Planning Applications.

Q.35 Of the 1645 Commencement Notices submitted since the 1st March until the 5th August 2014 how many have been ‘red-flagged’ at validation stage?

Answer;

Commencement Notices are either set to Valid or Invalid on the system.

Any notice set to Invalid is given a reason which is communicated to all stakeholders in the building project.

The BRegs Blog Admin. Team would like to thank Mairéad Phelan, Project Manager for the BCMS (Local Government Efficiency Review, Programme Management Office), for her prompt and informative response to the  questions above. 

SCSI and S.I.9- submit your questions.

by Bregs Blog admin team

Question-marks-(1)

SCSI and S.I.9- Everything you don’t know about the Society of Chartered Surveyors Ireland (SCSI) and now you can ask!

Following the success to our call out for questions and the detailed response to them from the BCMS, which we are publishing this week, the BRegs Blog decided to conduct a similar exercise for the other stakeholder groups involved with S.I. 9. The next group that we are publishing the call out for questions on is the SCSI. This is an opportunity particularly for those in the other stakeholder groups to find out how the SCSI and its members are getting on with S.I. 9 and related matters.

In the interests of efficiency the BRegs Blog now intends to submit an open letter with a series of questions to the SCSI to be answered on behalf of our readers. We will publish the responses so that they may be shared collectively.

Please submit any questions that you may have about the SCSI to bregsforum@gmail.com  on or before Thursday 21st  August 2014 at 17.00 pm. It is hoped we will be able to publish the Open Letter and questions being submitted to the SCSI on Friday 22nd August 2014.

In the coming weeks we will be submitting similar Open Letters with questions to the ACEI, RIAI and CIF.

Everything you wanted to know about the BCMS and now you can ask!

BCMS Q+A: Part 1 | General Issues

BCMS Q+A: Part 2 | I.T. Issues

by Bregs Blog admin team

Q&A

This is the second of three posts on the BCMS Question + Answer series. On 7th August 2014 the BRegs Blog posed a series of questions to the Building Control Management System (Link:). These were an edited compilation of questions that we received from our readers. The idea was that it would make for an efficient use of the BCMS resources if they replied to us in one email and we shared the information with our followers through Social Media.

We are very grateful to the BCMS Project Manager for her very swift and comprehensive response. As it is so detailed we decided to publish it as a series of posts linked by the subject matter of the questions to ensure maximum exposure. Monday’s post on general issues may be accessed here (Link:). The third post will follow tomorrow.

To summarise the response on I.T. issues below  it would appear:

  • It may be possible to submit Completion Certificates  online at the end of September 2014 (at present hard copy only)
  • Improvements to the system are ongoing
  • Only the Assigned Certifier may upload design changes after Commencement Notice
  • Editing of documents post-commencement notice validation may be possible by contacting the Building Control Authority.

I.T. Issues

Q.7 When will it be possible to submit Completion Certificates online?

Answer;

Development of the BCMS electronic module is under-way, an exact date cannot be given at this stage but an indicative date is end of September 2014. In the interim the Certificate  of Compliance on Completion notice may be downloaded from the BCMS; completed and submitted with the supporting documentation by email to the relevant Local Authority, where it will be uploaded to the “Supporting Documentation-Completion Certificate” tab in the BCMS.

Q.8 Is it correct that it is not possible to submit ancillary certificates and supporting documentation with Completion Certificates?

Answer;

No.  The Completion Certificates process will be quite similar to the CN submission process and all relevant documents may be uploaded.  In the interim the notice may be downloaded from the BCMS, completed and submitted with the supporting documentation by email to the relevant Local Authority, where it will be uploaded to the “Supporting Documentation-Completion Certificate” tab in the BCMS.

It is very important that the Annex to the Certificate of Compliance on Completed is completed in full, notwithstanding the fact that compliance/ancillary certificates may be uploaded i.e.

ANNEX Table of Plans, Calculations, Specifications, Ancillary Certificates and Particulars used for thepurpose of construction and demonstrating compliance with the requirements of the SecondSchedule to the Building Regulations and showing, in particular how the completed buildingor works differ from the design submitted to the Building Control Authority prior toconstruction.(Details of relevant plans, etc. may be listed below and attached hereto)

Q.9 Do the BCMS maintain contact details of those using the system in order to advise them directly of ongoing changes e.g. the recently introduced “role acceptance”?

Answer;

BCMS will endeavour to place notification of major upgrades on the BCMS site, while conscious that emails pertaining to site upgrades may be considered a nuisance by some people.

Q.10 Is it possible to introduce a facility to edit documents prior to and/or post validation?

Answer;

Users have the ability to edit, add or delete documents attached to any building project up to the point where it is submitted for validation.

Validation is based on the documents supplied.

The Valid Commencement Notice and Documents uploaded as part of the notice submission cannot be amended or deleted.

However additional documents can be added throughout the building project.

 Q.11 Do the BCMS intend to provide a user guide to the system?

Answer;

The BCMS oversight group are in the as forms are being completed is favoured as “Guides” and “Manuals” have not proven to be the most successful means to deliver support to the process of completing a guide to the system but the provision of “live” guidance user of online systems. The system will be continually monitored to find ways in which ease of use can be improved and suggestions from users are always valuable in this respect.

Q.12 Do the BCMS intend to provide comprehensive predictive answers or hints on the system?

Answer;

Improvements to the system are ongoing, this includes the provision of help text / hints.   See answer to Q.11 above.

Q.13 How does the Design Certifier upload additional documents for design changes during the construction phase or ensure that the correct documents have been uploaded at or before completion?

Answer;

As the Assigned Certifier solely has access to upload and review documents throughout a building project post Commencement Notice lodgement, such changes as may be provided by the Designer(s) can only be uploaded by the Assigned Certifier.

Q.14 Are there any plans to increase the speed for uploading documents and negotiating between pages on the system?

Answer;

This should have improved considerably recently.

The BCMS team are working to continuously improve the system.

Q. 15 Is there a limit on the capacity of the system and/or individual uploads?

Answer;

Document types should be in PDF and not greater 8mb in size.

Q.16 Is the Local Government Management Agency correct in their statement that the BCMS will not be fully operational for 18 months after 1st March 2014?

Answer;

The BCMS is not aware of this statement. The BCMS is designated to be developed through three initial phases comprising launch on 1st March 2014, a second phase that introduces machine-based interrogation for Risk Analysis purposes that will commence in September 2014 and a third phase that allows the use of electronic devices throughout the BCAs that are pre-populated with all information uploaded on the system to enable higher and improved levels of oversight by BCA staff. Elements of this third phase are already incorporated in the recently-published “Framework for Building Control Authorities” document.

Q. 17 Does the BCMS have a published API such as REST that external applications can use to read and write to the BCMS system? If yes, are there examples of its usage? If not, do you plan to introduce this functionality?

Answer;

No.

External access to the system is not allowed.

Q.18  Who are the website developers and were they procured through the public / E-tender procurement process? There is a story (attributed to you) doing the rounds that the reason there are so many glitches with the system is that the developer’s first language was not English!

Answer;

The developers were procured in accordance with public procurement requirements through the E-tender process. The companies are Irish SMEs located in Dublin and Galway.

Q.19 Is it planned that a Commencement Notice can be deleted once started?

Answer;

Once a Commencement Notice has been submitted for validation it cannot be deleted.

Q. 20 Is it planned to have an easier online method of unlocking documents to upload newer versions other than contacting Local Authority

Answer;

Users have the ability to add, delete and review documents attached to any building project up to the point where it is submitted for validation.

When a notice is submitted for validation, documents uploaded as part of the Commencement Notice submission are locked.  If, at the discretion of the BCA, further information is required, the BCA may unlock the building project and allow documents to be added or deleted as requested.  The building project will then be locked again to allow validation to proceed.

Please note, additional documents can be added throughout the building project to completion stage.

The BRegs Blog Admin. Team would like to thank Mairéad Phelan, Project Manager for the BCMS (Local Government Efficiency Review, Programme Management Office), for her prompt and informative response to the  questions above. 

 

 

 

 

 

 

Can I bring a claim against Building Control?

by Bregs Blog admin team

Building-Control.Construction-Site.Blog_

In the following article by UK solicitors Barr Ellison “Can I bring a claim against Building Control?”, the question of bringing an action against the Local Authority in the event that a contractor is unable to meet an award is discussed. Given the similarities in legal systems and demographics, it is interesting to read that even with 100% local authority inspections as a proactive building control measure, the recommended route for consumer redress is still against a main contractor. For the article click link here.

In the new building regulation system introduced in Ireland since March 1st 2014, Local Authorities have sought to distance themselves further from any oversight of the building process by regulating professional roles and reinforcing the current system of self-regulation. Although competent professions have been identified and regulated (with other competent professions like Architectural Technologists excluded), critically builders still remain unregulated. A register of builders as been created (CIRI) but this is owned and operated by a private organisation, the Construction Industry of Ireland (CIF). This organisation has recently written its own certificates for use in the new system. Many professionals believe these certificates are very favourable to contractors and in fact allocate less responsibility for their own work than was the case pre-implementation of S.I.9.

BC(A)R SI.9 has created a single-point of responsibility for the consumer, the professional tasked with the role of Assigned Certifier, who now takes on disproportionate responsibility for the work of all involved, including main and sub-contractors. Clearly an unsustainable situation and one that will be resolved, if not by representative professional bodies soon, then by insurance companies later, when claims start making their way through the courts and premiums start to escalate as a result.

The above extract from an article “Can I bring a claim against Building Control?

Sarah PayneLitigation Solicitor at Cambridge solicitors Barr Ellison.

Link to full article:

 

BCMS Q+A: Part 1 | General Issues

by Bregs Blog admin team

Q+A

On 7th August 2014 the BRegs Blog posed a series of questions to the Building Control Management System (Link:). These were an edited compilation of questions that we received from our readers. The idea was that it would make for an efficient use of the BCMS resources if they replied to us in one email and we shared the information with our followers through Social Media.

We are very grateful to the BCMS Project Manager for her very swift and comprehensive response on 13th August 2014. As it is so detailed we have decided to publish it as a series of posts linked by the subject matter of the questions to ensure maximum exposure. The first post concerns general issues with the other two to follow on Wednesday (I.T. issues) and Friday (Process issues).

To summarise the response below  it would appear:

  • There is no formal process now or being considered for obtaining a certificate of exemption from S.I. 9 although this is being sought by the Law Society for any property conveyance where applicable. The professional bodies have not produced one either. Assigned Certifiers are on their own with regard to borderline projects (Link to yesterday’s post on demolition)
  • A good practice example of Commencement Notices for some project types may be available for the end of September 2014. The answer to whether the professional bodies (ACEI, RIAI and SCSI) are involved directly in this process is ambiguous.
  • The BCMS seems to consider it acceptable to register yourself on a Commencement Notice as a self-builder if you consider yourself “competent” even if you are not registered with CIRI or a Principal or Director of a Building Company.
  • The BCMS will not be conducting any media publicity campaign in relation to S.I. 9
  • The BCMS have little advice for anyone who may have inadvertently failed to submit a Commencement Notice, where applicable, for building work carried out since the 1st March 2014. It is up to the building owner to submit proposals for how they intend to regularise the situation to the Building Control Authority.
  • All Commencement Notices are validated independently by the 34 individual Building Control Authorities and not by the BCMS.

General Issues:

Q.1 By far the most frequent questions we received related to possible S.I.9 exemptions e.g. borderline extensions with floor areas circa 40 m2  where our followers sought reassurance on behalf of building owners. Is it possible to apply to the BCMS for a formal Declaration or Certificate of Exemption from S.I 9 similar to a Section 5 under the Planning and Development Acts?  If not, do the BCMS intend to issue guidance on exempt works or will this be left to the courts to determine? 

Answer;

Section 6 of Building Control Act 1990(BCA) as amended by Section 5 of the BCA 2007, provides for the making of secondary legislation by the Minister in the form of “Building Control Regulations” (BCR).

The Act states that these BCR are intended to provide for “matters of procedure, administration and control for the purposes of securing the implementation of, and compliance with, the requirements of building regulations and building control regulations”.

  1. Responsibility for compliance with the Building Control Regulations and Building Regulations is ultimately a matter for the owner or builder of a building.
  2. For the purposes of theBuilding Control Regulations, exemptions to  the requirements for works or a building as regards which a material change of use takes place is set out in Article  6, Part I, of Building Control Amendment Regulations (BCAR)  S.I 496 of 1997 as amended.
  3. Part II, Article 7, 8, 9 and 10 of BCAR 1997-2014 sets out the application, obligations, form of notice and procedure in relation to the Commencement Notice with and without supporting compliance documentation.
  4. In relation to extensions the regulations specifically state “an extension to a dwelling involving a total floor area greater than 40 square metres”, i.e. not circa but “greater” floor area being that bounded by the inner finished surfaces of the enclosing walls.
  5. The BCAR does not provide a mechanism for a formal Declaration or Certificate of Exemption from S.I. of 2013 similar to that provided for in Section 5 of the Local Government Planning  and Development Act 2000 to 2013 “Declaration and referral on development and exempted development”.

However notwithstanding the requirements for the provisions of the BCAR when considering;

“( a ) the design and construction of buildings;

( b ) material alterations or extensions of buildings;

( c ) the provision of services, fittings and equipment in, or in connection with, buildings;

( d ) buildings as regards which any material change takes place in the purposes for which the buildings are used;”

Regard should be also taken of the requirements of the Building Regulations 1997-2014.

  1. It is important to note that the primary purpose of the Building Regulations is to provide for and secure the health, safety and welfare of persons in or about buildings, and persons who may be affected by buildings or by matters connected with buildings to; provide for the special needs of disabled persons in relation to buildings; provide for the conservation of fuel and energy in relation to buildings and encourage good building practice.
  2. Consideration should also be given to the requirements of Section 11 of the Building Regulations whichstipulates the Regulations apply to every part of a buildings affected by the material alteration or extension but only to the extent of prohibiting any works which would cause a new or greater contravention, in such building.
  3. Therefore in cases where there is not a statutory obligation under the BCAR with regard to design and construction there may be a statutory requirement under the Building Regulations.

Therefore in light of the above considerations each case will have to be assessed by the Building Control Authority on its merits having regard to the requirements as set out in the Building Regulations but; with the implementation of the BCMS it is anticipated that a consistent approach for similar situations will be taken across the Building Control Authorities.

Q.2 Do the BCMS intend to publish sample BCMS validated submissions for a selection of project types as industry standard examples? If so, when do the BCMS hope to do this and are the professional bodies involved in this process?

Answer;

The BCMS Project Oversight Board and Steering Committee are continuously monitoring the CN/7 Day notice submissions and intend to provide a good practice example submission for some project types. It is anticipated that this will be available the end of September 2014. The professional bodies have representation on the Project Oversight Board.

Q.3 What advice should be given to a self-builder, who is not a Principal or Director of a Building Company, when signing Section 4 of Part A of the Certificate of Compliance on Completion e.g. should they scratch out the relevant phrase “to be signed by a Principal or Director of a Building Company only”?

Answer;

Responsibility for compliance with the Building Control Regulations and Building Regulations is ultimately a matter for the owner and builder of a building.

  1. Builder” means a competent builder appointed, for purposes of the Building Control Regulations, by the building owner, to build and supervise the works;
  2. “Building Owner”means the person who has commissioned or paid for the works and who has legal entitlement to have such works carried out on their behalf;
  3. While the Builder and Building Owner may be one and the same i.e. self- builder who may or may not be a Principal or Director of a Building Company, it is advisable that they ensure that they are competent to carry out the works or building in question.
  4. self-builder should be familiar with the requirements of the Building Control Acts/Regulations and the Code of Practice and note the following;
    1. “Competent Person”:a person is deemed to be a competent person where, having regard to the task he or she is required to perform and taking account of the size and/or complexity of the building or works, the person possesses sufficient training, experience and knowledge appropriate to the nature of the work to be undertaken.
    2. The self-builder being satisfied that the above is in order is then required to register on the BCMS as owner and assign themselves as builder and follow the Commencement Notice application procedure.

There is no requirement to scratch out anything on the form as all the relevant details are captured in the registration.

 Q.4 Does the BCMS intend to conduct any public information campaign through national media to inform the public and building owners of their responsibilities in relation to the BCMS?

Answer;

Each Local Authority has added details to their individual websites regarding the requirements of the Building Control Regulations and this is also included in planning notices.

 

Q.5 What advice would the BCMS give to someone who inadvertently carried out building work since the 1st March 2014 that was not exempt from S.I. 9 and who did not submit a valid Commencement Notice?

Answer;

Responsibility for compliance with the Building Control Regulations and Building Regulations is ultimately a matter for the owner or builder of a building. There is no means whereby a BCA can retrospectively grant a Commencement Notice application where work has commenced.

The requirement to give notice to a Building Control Authority of the intention to carry out development was introduced in in the 1991 Building Control Regulations, revoked in the 1997 Building Control regulations as amended 2000, 2004, 2009 and 2014.

It is the responsibility of the building owner to submit proposals to the Building Control Authority on how they propose to regularise the situation.

Q.6 Are Commencement Notices validated by the BCMS before issue to the 34 individual Building Control Authorities?

Answer;

The BCMS of itself does not or cannot validate or invalidate notices but provides the means where this is done automatically or by default for BCAs in support of their administration of the system. The BCMS is a shared service which facilitates the administration of building control notices for BCA’s nationwide.

All BCA’s manage and validate notices through the BCMS. The BCMS does not and cannot make any building control decisions. All decisions are made by the relevant BCA.

The BRegs Blog Admin. Team would like to thank Mairéad Phelan, Project Manager for the BCMS (Local Government Efficiency Review, Programme Management Office), for her prompt and informative response to the  questions above. 

 

Demolition and S.I. 9

by Bregs Blog admin team

Demolition 1

The BRegs Blog received a query from a reader/planning applicant in relation to the implications of S.I. 9 for demolition works and their impact on the submission of Commencement Notices. The reader’s Assigned Certifier was unable to advise on the correct procedure and when they referred the question to their local Building Control Authority they were unable to answer the question either. We thought our readers might be able to help.

The question received:

I have recently received planning permission to “Demolish existing house and sheds and construct a replacement dwelling…. ”

There are standard conditions associated with the planning permission including some pre-development conditions that I understand I would need to comply with prior to any development commencement. I also understand that demolition of the existing dwelling would constitute development under planning legislation. However demolition is not handled under building control legislation. I am currently at the design stage and preparing to submit a commencement notice under the new building regulations. This is however taking time and I wish to demolish existing structure this summer/autumn as opposed to in the winter when I expect to be lodging the commencement notice.

My specific query is as follows:

Is it possible to demolish the existing house, having complied with the relevant planning conditions, without having received a commencement notice through the BCMS system? If so, how can this be done?

Perhaps some BRegs Blog follower may be able to comment below or email: BRegs Blog Email

*Response 1: via @NigelRedmond – Twitter

I would send in separate Short Form Commencement Notice for the demolition works. Then submit a Long Form Commencement Notice for new build.

*Response 2: via Keith Carney – Facebook

Could the applicant discuss with their local Building Control Officer? Some take different approaches. If the demolition is only one dwelling and not attached to an adjoining structure then the busing regs don’t apply as you are simply demolishing a structure and no Commencement Notice required. If you had to prop up adjoining walls or structure then Part A is affected and thus a Commencement Notice is required. [Editor’s Note: the applicant had advised, as stated above, that they had contacted their Building Control Authority who were unable to provide assistance or direction].

*Note the BRegs Blog accepts no liability for this information and recommends that any building owner seeks professional advice before undertaking and building works.

 

Friday Follow | Eoin O’Cofaigh FRIAI

by Bregs Blog admin team

In case you missed it essential reading for all potential certifiers- RIAI address by EOin O’Cofaigh

BRegs Blog

Eoin O'Cofaigh

 Eoin O’Cofaigh FRIAI

On Wednesday 13th August the BRegs Blog pulled a report on the RIAI EGM held the previous evening as it was felt that reporting attributed quotations without permission might impact on the openness of future debates at any similar EGM. The BRegs Blog Admin. Team are still considering the issue and whether a ‘Chatham House’ rules report might be better. This is where we report what was said without naming who actually said it. We would like to hear your views on this.

In the meantime the BRegs Blog has received permission from Eoin O’Cofaigh, one of those who spoke at the EGM, to reproduce the address he prepared for the EGM to be published in full. It is noted that as there was a time limit on speakers not all of this address was read out on the night. The BRegs would be happy…

View original post 7,975 more words

BCMS | Donegal County Council

by Bregs Blog admin team

Donegal

The BRegs Blog has been informed that Donegal County Council made an announcement yesterday on their website that there was to be a change to procedures for operating the Building Control Management System (BCMS). The BRegs Blog will have a series of Q+A posts on this issue next week as a follow up to our Open letter to the BCMS Project Manager (Details here:).

The issue of how best to disseminate information on such changes to the BCMS is of interest to all users of the system. The announcement from Donegal Co. Council read as follows:

NEW INFORMATION ON BCMS PROCEDURES :

There is to be a release tonight Friday 15th August 2014 and there is a couple of items to be made aware of :

  1. The link in the email sent to stakeholders on role nomination will now bring the user to the correct tab for Acceptance.  This should ease the burden of Role Acceptance issues.
  2. The roles acceptance process has changed.  Users can now nominate roles and proceed to Documentation stage without Acceptance.  The system will check on submission that all users have accepted and will block submission if not.
  3. The issue with owners accepting role without entering appropriate information (eg Address info) has been fixed.
  4. The users were getting two emails when nominated for a role.  They will now only get one.
  5. We have removed the ability for all users other than the assigned certifier to upload documents once the application has been submitted (as directed by the Steering Group*).
  6. There is now additional help text around payment amount and how to change if incorrect.

These changes should have a significant impact on the support load which exists at present.  Your patience is appreciated through this improvement phase.

– See more at:

* The BREgs Blog Admin Team do not know what the ‘Steering Group’ that is referred to here is comprised of.

Friday Follow | Eoin O’Cofaigh FRIAI

by Bregs Blog admin team

Eoin O'Cofaigh

 Eoin O’Cofaigh FRIAI

On Wednesday 13th August the BRegs Blog pulled a report on the RIAI EGM held the previous evening as it was felt that reporting attributed quotations without permission might impact on the openness of future debates at any similar EGM. The BRegs Blog Admin. Team are still considering the issue and whether a ‘Chatham House’ rules report might be better. This is where we report what was said without naming who actually said it. We would like to hear your views on this.

In the meantime the BRegs Blog has received permission from Eoin O’Cofaigh, one of those who spoke at the EGM, to reproduce the address he prepared for the EGM to be published in full. It is noted that as there was a time limit on speakers not all of this address was read out on the night. The BRegs would be happy to consider publishing any other similar remarks from the EGM.

Remarks prepared by Eoin O Cofaigh FRIAI for presentation to the Extraordinary General Meeting of the Royal Institute of the Architects of Ireland, Davenport Hotel, Dublin; on Tuesday 11 August 2014

It is my conscientious belief that S.I.9 is disastrous in terms of the liability for other peoples’ work which it imposes on the Design Certifier and the Assigned Certifier. It must be revoked immediately in the interests of all practising architects. No “re-centering the Profession” or “I can take responsibility for my work” or “This is a meal ticket for architects” can mitigate the liability involved.

To revoke S.I. 9 will enable introduction of a better system for consumers, building owners, and architects alike.

Introductory Remarks

Thank you President.

President, as you know, when you read out the notice of this EGM requisition to Council last June, I was concerned about its timing. I have thought about this since and have come to the conclusion (a) that the timing is fine and (b) that I fully and unreservedly support this motion. We must pass this motion tonight if the profession is to have any hope of changing this law. If this motion is not passed, we can forget about changing this law until the next round of building disasters. By which time, it will be too late, for by then, those of us in this room who are now acting as Design Certifier and Assigned Certifier will have faced many legal proceedings.

In speaking tonight, I emphasize that I speak from personal experience of working with architects, building owners, lawyers and insurance companies on litigation matters affecting architects. I prefer to defend architects but often am called in too late. What I say here is from my personal experience. I am not relying on what others say, even if this is important. I have “read it all” and come to these conclusions, which conclusions however are shared by many more eminent than I.

President, the reason I support this motion is simple. Liability. Nothing else. Liability from start to finish. Liability of both the Design Certifier and of the Assigned Certifier. S.I. 9 makes the Design Certifier and the Assigned Certifier fully liable for the quality of the entire design and the entire construction. This is as it set out to do. This was announced by Minister Hogan when he signed S.I. 80 into law; it was confirmed in writing by Minister Kelly about S.I. 9 two weeks ago; and is what the CIF are saying publicly on the airwaves last week.

I owe it to you, President, and to everybody in this room to explain why I believe that what I believe to be intolerable liability, is in fact that. This speech is the basis of my opposition to S.I. 9. It’s a long one because my reasons are detailed. I wish I were wrong in my opinions. Indeed I hope I am wrong. Otherwise, those who have already acted as DC and AC are already in the deepest trouble.

Now I might also be concerned about workload and fees. Those who take on these roles are set to loose money. The fees offered won’t even pay the PII premiums, let alone give any reward for the extra time and worry. But that’s a second-order issue. I am not interested on negotiations with the Department of Education because I am not taking on those roles. And will those fees really pay you? Really, for the extra time and worry? Is this what we have been led to?

No extra fees, no allure of extra work, no imagining of “being at the centre of things”, can pay you for the liability attaching to the roles of DC and AC.

I decided last March that I am not acting as Design Certifier or Assigned Certifier, because of the liability. This decision, not only endorsed but insisted upon by my fellow architect director, has so far cost us two good clients and is set to cost us more. To be sure, we are devising strategies to continue in practice. But make no mistake, the convictions I express in this paper have cost my firm money and time and are set to so continue. And how I wish I could believe those who say that it’ll all be all right. How I wish I could avoid these conclusions.

The Design Certifier certifies the design and the Assigned Certifier certifies the construction. These must comply in full with every aspect of the building regulations. There is no time limit on the certificate. This certificate is to everybody, about everything, for all time. And if an employee signs the certificates, they are liable in equal measure. This is all as clear as day. Let me explain why.

The Design Certificate

I urge you, listeners and colleagues, to read the Design Certificate words yourself. Do not just trust me or anybody else. Read it and see that the Design Certificate says:

I certify … that the proposed design is in compliance with the requirements of the Second Schedule to the Building Regulations.

Now it’s true that I have shortened the text. I omitted a subsidiary phrase. The full text talks about reasonable skill and care. And so you may say, does not the reference to “having exercised reasonable skill, care and diligence” help you? In my view:- No. The reference to “having exercised reasonable skill, care and diligence” only makes it worse for you. Because, if the design is found not to comply – why then, clearly you did not exercise reasonable skill, care and diligence in preparing the certificate. You are in a double whammy: you erred in the certificate because it’s wrong, and you failed to exercise your promised skill and care.

And if you relied on others’ certificates – why did you, when they were incorrect?

Colleagues, I am telling you, that if I were acting for a plaintiff against you, you would not last five minutes. And top lawyers agree with me.

But, you’ll object, what about the “Undertaking by the Builder”? Doesn’t the builder promise to build per the building regulations?

President, the “Undertaking by the Builder” gives no undertaking that he’ll build per the building regulations. Only that he’ll build per the plans. So the builder is absolved of the statutory duty placed on him in the Building Control Act, that he must build per the building regulations. No wonder the CIF support S.I.9.

The Certificate of Compliance on Completion

My colleagues, please download the text of the Certificate of Compliance on Completion and read it for yourself if you have not already done so.

Take ten minutes to read and think about what it says. I have done this many times starting with the drafts in May 2012, then with S.I. 80 last year, then with draft revisions last November, then with S.I. 9 as we are faced with operating.

The builder certifies that he has built per the plans. The Assigned Certifier “certif[ies], having exercised reasonable skill, care and diligence, that the building or works is in compliance with the Second Schedule to the building regulations.”

That is the sentence, those are the words, which you are signing. Not an opinion. A certificate. Not “substantial compliance” but compliance tout court. There are no let outs: and this is what the Minister intended.

Read the words carefully colleagues, and listen to what they mean, in their ordinary interpretation. The ordinary construction of the words, their simplest obvious meaning, is the correct legal interpretation. The Certifier says he has exercised reasonable skill, care and diligence, and certifies that the works comply. The builder offers no such promise. Only the Assigned Certifier.

If the works do not comply, then prima facie the Certifier did not exercise reasonable skill, care and diligence, for otherwise he would have spotted the infraction which he certified as not existing. So in my book, the Assigned Certifier goes down twice. Once for wrongful certification, and again for failing to exercise reasonable skill and care.

Think about a distressed house buyer; or an unscrupulous developer; or somebody who just wants a few bob; think about a witness for the plaintiff who can read English; and ask yourself – is this liability reasonable?

This is Not On. It all turns on those two pages of the Certificates.

No “Code of Practice” can get you out of this. The Code of Practice is subsidiary to the regulations. As a matter of law, the regulations come first and what’s in them overrides the Code of Practice.

You are certifying that the building as-built complies fully with every aspect of the building regulations. This includes all materials, all workmanship, pyrites, radon, dpcs, all the Part L calculations, all the fire-stopping, the pull strength of all the door closers for Part M, all the safety glass.

As a supplier in a hurry, I will be so happy that the Certifier is certifying my work. I will be so happy about that when I know that if there’s a problem, the Assigned Certifier stands between me and the litigant.

If you want to protect suppliers and subcontractors, I suggest that you accept an appointment as Assigned Certifier and, having done so, you then sign the Certificate of Completion.

The liability in general

Now some of us have been saying this about liability for the past two years. Others in this room have worked hard to try to get us out of that problem. Full credit, President, to those colleagues who have done and argued all they can. I have never criticised my colleagues’ voluntary unpaid efforts on all our behalfs. But this evening is not about my colleagues and all their unpaid work. It’s about a law, which imposes intolerable liability on the Certifier, a law which makes it very difficult not to take that role if we want to continue in practice as architects. Make no mistake President, this issue will not go away until this law is changed, because sooner or later it is going to destroy each and every architect who takes those roles.

President, I have no problem with taking responsibility for my own work. I know we all feel similarly. I have taken responsibility for my work during 33 years as a principal in private practice, and taken my mistakes on the chin. I have also been sued by people out to get me, whether just out of dishonesty or whether it’s to get my P.I.I.. This is and will continue to be Life. And anybody in this room who thinks there are no dishonest clients, no dishonest plaintiffs, that nobody out there is after the architect’s PII – well, anybody who imagines that is, what’s that word I saw in the magazine recently? – delusional.

What Minister Hogan said about S.I. 80

President, I am saying clearly, here and now, that this Law is out to stitch up the Design Certifier and the Assigned Certifier. This is no secret. That’s its whole purpose. Listen, first, to what Minister Hogan said in March 2013 when he launched S.I. 80 of 2013:-

“The new Building Control Regulations are a major step forward and will for the first time give home-owners clarity, traceability and accountability at all stages of the building process.”

In other words, the regulations are about traceability and accountability, not about better building.

What Minister Kelly is saying about the new regulations

Now some people say matters have improved with S.I. 9. Indeed a number of my colleagues, in particular your immediate predecessor, made huge efforts to improve matters on our behalf. But in reality nothing has changed. Listen to what Minister Alan Kelly wrote just two weeks ago. The Minister was asked:-

Given the recent occurrence of pyrite in defective blockwork and numerous high-profile demolitions around the country, will SI.9 bring an end to the issue of defective building materials, or just further distance local authorities from their [market surveillance] responsibilities and place a target on one Certifier’s back?

The Minister answered in writing, and it’s on public record, as follows:-

“While the new regulations do not make explicit reference to Declarations of Performance for construction products, given that the regulations require both the design professional and the assigned certifier to sign statutory declarations (the latter in conjunction with the builder) certifying that the building/works has been designed and constructed in compliance with the requirements of the Building Regulations, Declarations of Performance may be relevant as a means of demonstrating that “proper materials” have been used in accordance with Part D of the Building Regulations”

As a child in Primary School, I learned that you can leave bits between brackets out without affecting the sense of the sentence. Leave out the bit the Minister put between brackets, and you get:-

“the regulations require both the design professional and the assigned certifier to sign statutory declarations certifying that the building/works has been designed and constructed in compliance with the requirements of the Building Regulations”

So the Minister believes that if we act as Design Certifier or Assigned Certifier under S.I. 9, we are signing statutory declarations certifying that the works have been designed and constructed in compliance with the building regulations.

And that this includes Part D and means, all the workmanship and all the materials. So when you acted as Assigned Certifier and there’s a problem with pyrites in the blockwork or fill – this will land on your desk, and the Minister reckons that the Declarations of Performance may be relevant… if you have them, or not.

Or maybe there’s just a problem with flaking paintwork? That’s a Part D issue. You say, colleagues, that it’ll never come to that? Or that it isn’t a Part D issue? Are you sure? Think distressed first-time buyer, a sympathetic judge, and think again.

The Minister reckons he has the Assigned Certifier certifying the materials delivered to the site.

What the CIF are saying about the regulations

And if you think that this is just the politicians, or that the Minister’s reference to “in conjunction with the builder” helps us:- listen to what CIF Director General Tom Parlon said on Louth/Meath local radio on 16th July last. Mr. Parlon was asked:-

“What about the issue of somebody who joins the [CIF] Register, builds a house, maybe it’s full of pyrite or the ceiling falls in, and basically it turns out that even though the builder is on the Register they do a bad job – are there penalties for that individual that they must pay?

Mr. Parlon replied,

“There are penalties already under the new building regulations, everything must be signed off by a competent Assignee, who can only be an architect, a building surveyor or an engineer, and in signing off on behalf of the builder, there are obligations there and they have to stand over those.”

So Mr. Parlon is broadcasting that the Assigned Certifier signs off on behalf of the builder. That it’s the Assigned Certifier who has the responsibility for the finished building. Not them.

So why would the builders not support this law?

In my opinion, the CIF negotiators did a great job for their members. When the pyrites is found in the blocks, Minister Kelly has confirmed that the Assigned Certifier will be responsible.

And fair play also, to the Engineers. The Ancillary Certifier roles are almost scot free of liability. The engineers are happy to act as Ancillary Certifier and have little intention of acting as Design Certifier or Assigned Certifier. No wonder the ACEI and Engineers Ireland also support S.I. 9. Why would they not support it?

What do the lawyers say?

President, lawyers retained by the Institute and others have said a lot of things. We hear repeatedly that “things are no worse than under the old Opinions on Compliance regime”.

But other eminent Senior Counsel and solicitors reject that. While, in Dublin Castle last April 2013, the Institute’s own solicitor said that Opinions on Compliance are the single biggest cause of actions against architects.

In my view, an Opinion is one thing; a Certificate is altogether more certain. The buyer and the Minister want certificates because they sense that certificates are certain.

I know. The insurance companies and their lawyers ask my views. Indeed occasionally I am asked to act for plaintiffs against my colleagues. Which, by the way, I have decided not to do in relation to S.I. 9. But that will not stop others from so acting. And with all sorrow, I tell you that it will be child’s play to sink the Assigned Certifier.

For the ACEI, we saw recently that Mr. David Nolan says “S.I. 9 is better than S.I. 80.” Now to me that sounds like I’m going to be hung, but more gently than before. When I read Minister Kelly and Mr. Parlon, whether S.I. 9 is better than S.I. 80 is of small consolation.

You must remember that Counsel briefed on behalf of the CIF and the Engineers were responding to their instructions. And if the architect is taking the responsibility as Mr. Parlon has confirmed, why wouldn’t the engineers and contractors conclude there’s no problem with S.I. 9?

The best informed and most clearly briefed lawyers say that S.I. 9 is lethal in terms of the liability the certificates impose on the Design and Assigned Certifiers. We have circulated you with the papers in the post. And even if you choose not to believe them, even if you also ignore the Minister and Mr. Parlon, all of whom reckon the Assigned Certifier is liable for the lot; can you really afford to be so reckless and rely on the carefully chosen words of a few?

No President, lawyers may and do have different nuances of opinion. But nobody says the Assigned Certifier is fire-proofed by the get-out words.

S.I. 9 must go because lawyers, who never agree, cannot persuade themselves that the carefully constructed get-out clauses will actually help in the face of a claim.

President, the Institute tells us that we must “make up our own minds” on the liability. Now I do not understand why the Institute cannot publish a consensus view. Or, if the Institute thinks the views in this speech are wrong; if the Institute thinks the liability is OK, or thinks the liability is “worth it” in terms of other gains to the Membership, then why not say so? President I wish I had other views. These views of mine have cost me money on lawyers, hundreds of hours of unpaid time, lost clients, and a whispering campaign against me and my motives. But there it is.

S.I.9 is a certificate to everybody

And to act as Design Certifier or Assigned Certifier, or both; and to sign, first the Undertakings and then the Design and Completion Certificates in S.I. 9 is a certificate, on public record.

Just like with the old Opinions on Compliance, everybody will be able to use them in litigation. I have watched legal actions under the old Opinions being brought against an architect by a building owner; by a tenant; by somebody who bought a building.

Three years ago I tried to help a well-known architect firm defend themselves in an action brought by a man who fell, drunk, at midnight, over a wall which they did not design on a housing development in south County Dublin. It sounds incredible. But it’s true. So what happened? Well, I thought I had shown how they were not at all liable and that the management company who had allowed a fence be trampled down and did nothing about it should have considered their position. But our colleagues’ insurers paid up. Our colleagues paid the excess, they paid in increased premia over the next four years and still counting, and they paid in untold sleepless nights.

Yes, that was under the “Old Opinions on Compliance”. Yes, S.I. 9 is different. S.I.9 is different because it’s worse than the old Opinions on Compliance. It’s not opinions, it’s certificates. Ask Minister Kelly.

S.I.9 is a certificate about everything

I have been asked to defend so many members who have given Opinions on Compliance, who get sued over leaking windows designed by specialist subcontractors; over failure to comply with Part L energy calculations; over houses which fail the air-tightness tests. A few years back I have acted for a Member where his client was prosecuted criminally by Dublin City Council over failure under the old Part M to provide an accessible main entrance to a hotel on the side of a hill. By the way, I got them off. But I wouldn’t be so sure I would have, if they had lodged one of these Certificates of Completion with the building control authority.

S.I. 9 is worse. You will now be giving statutory declarations about pyrite-free aggregate. Ask Minister Kelly.

S.I.9 is a certificate for all time

Now as regards whether these Design and Completion Certificates are for all time:-

There might be some light here. In some circumstances it’s possible to get people off if a claim arises out of circumstances which happened more than six years ago. This isn’t the time for a lecture on the legalities of “Out of Time”. But my instinct is that a certificate can continue to be relied upon longer than an opinion; and anyway, if you want to certify right now on the basis that in 2022 they cannot sue you; well, is that really very sensible?

And by the way, there is no six-year limit on actions arising out of personal injury. Reference the South Dublin case above where my colleagues were sued ten years after the building was finished. So if it’s ten years gone, the thing for the plaintiff will be to look hard at the radon barriers, get the tests done, find elevated radon levels, get a few medical reports and – off with the litigation. Would they succeed? Maybe not. Is it fair? Of course not. Is it honest? Decide yourself. Would the Insurers pay out? Why not, if it were just your policy excess involved. €20,000 to go away and everybody’s happy, except the architect who signed the Certificates and whose PII premium next year will be claw-back time.

Not every litigant is 100% honest

And let us remember that not every litigant is 100% honest.

Which of us, in practice for, say, ten or more years, would say that they never met a client who was less than 100% honest? Now maybe all public sector clients are totally honest and that is truly a good thing. But the rest of us all have met people ready to “have a go”; a client with no money who needs to stop a job to avoid paying a bill; a client who relished litigation as a high-stakes hobby; a client who is being whispered poison by his lawyer. We have, or many of us have, seen slips, trips and falls, either totally manufactured or else exploited dishonestly. Think about the one I mentioned a moment back.

Not only clients. Buyers. Tenants. Lawyers who need work.

S.I. 9 is an Open Door to litigation. This is good news for prosecuting lawyers but disastrous for those of the profession who will face paying out.

Employees, also, are liable

President, in my experience, employees, also, will be sued. This may be a surprise but I speak from appalled personal experience as follows.

Last week President, on my return from holiday, a letter awaited me from a lawyer in Navan. He was, is rather, acting for a plaintiff against six defendants. A housing scheme in Meath or somewhere. The case is one of building defects and, surprise, there’s an architect’s Opinion on Compliance. Of the defendants, one is the architect company; one is a company director, being sued in his personal capacity; and two are the employees of the company who actually signed the Opinions, also being sued personally. I know the firm and the directors, we all do. I do not know the two employees who are their co-defendants.

The lawyer acting for the plaintiff wanted me to retain me as an Expert. I refused. But that will be no help to my colleagues being sued because somebody else will act for the plaintiff, and those two employee defendants may very well yet be “fried”. Actually, to tell the truth I think the employees will probably get off, because the employer firm is still in existence and probably has PII. But I would not like to be in their shoes, and I don’t know whether they have PII themselves.

President, I make the melancholy prediction that employees will be sued under S.I. 9 the same as they are already being sued under the old Opinions on Compliance. If you sign the Certificate, it is you who are signing; and a lawyer “out for blood” will not desist from suing you just because you were acting for a firm. What if your employers are retired? Liquidated? Have no PII?

You understand, President, that this remark is based on correspondence to me last week. I shredded the enquiry. But if you ask me to, I will, in strictest confidence, put you in a position to confirm the truth of what I am saying.

For employees and directors alike, S.I. 9 must be revoked immediately.

Even the largest and most prestigious offices have concerns

President, the principle of “Council confidentiality” means that I will not name Names. But you and I both know that a number of the largest and most prestigious firms are declining to accept appointments under this legislation. They know what this means in terms of lost clients. But anybody here tonight who thinks this is “only a problem for the little people” should think otherwise. Size will not protect you. No matter the size of the firm, large or small, the problems which S.I. 9 causes are similar.

Now maybe it’ll be OK for you if it’s just a 40 square metre house extension with a fantastic client and a brilliant builder and a 10% fee to start off with.

But ask yourself – is that the reality for the majority here tonight?

And I do indeed share the view of some colleagues that it would be lovely not to have anybody else “looking over my shoulder” and if I took all the responsibility. That is indeed a way for me to get more work and to place me back at the centre of the construction industry. Lovely.

But that is wishful thinking. The reality is cold, hard, lawyers, liability, sleepless nights, pyrites, litigation and self-protection.

The likelihood of criminal responsibility

President, one might perhaps say, “Oh, but we are covered by our Professional Indemnity Insurance”. This is not so. Our PI will not cover us in respect of fines we might have to pay or indeed jail sentences we may yet have to serve. How does the possibility of criminal responsibility arise?

Here’s how.

S.I. 9 makes it an offence not to respond to a request from a building control authority for information. So when the Assigned Certifier lodges a Certificate of Completion, and the BCA writes back and wants more details about, say, the fire alarm panel, or the test reports on the fire doors, or on the door closer strength, or the concrete blocks, and we don’t have the information; and the contractor is too busy; what happens then? The Assigned Certifier will have failed to respond to a request for information. This looks very much like an offence under the regulations. Such offences are punishable under summary proceedings by a fine or imprisonment; or, on indictment, by jail of up to two years. Is this scaremongering? Well, if there is another disaster, and we are then caught in the crossfire, it will not be scaremongering at all.

I did ask the Institute to look into this at the May Council meeting; and, hoping against hope, perhaps things are not this bad. But I wish I could be sure of as much. Think: building control authority under pressure of time. How might an overworked building control authority put off having to examine a Certificate of Completion? Well, one easy way will be to request additional information from the Assigned Certifier. You say this’ll never happen? Well, do Planning Authorities ever request Further Information as a device to put off a decision? Never?

No Professional Indemnity Insurance policy will pay my fines or do my jail term. Is it really worth the risks? Should we really be supporting S.I. 9 when this is what it puts us to? We must oppose this law now.

We are caught between the client, the contractor and the money

Perhaps the moments coming up to Practical Completion are the worst. Say, the AC lodges the Completion Certificate five weeks beforehand, in good time. But is this really possible? If you, my colleagues, sitting here this evening have a school project to be handed over on Monday 25th August next: have you already gotten the commissioning certs for the lift, fire alarm, emergency lighting, fire doors, closers, fire stopping, gypsum board and the rest? Of course not! We all know how it works!

So what happens when you lodge the Completion Cert and the Building Control Authority refuse to validate it? When they want, as they should want, more detail? The building cannot be opened, occupied or used. Whose fault will it be? Not the contractor’s, he will be finished on time. Not the client’s. It will be your fault because, prima facie, it will appear as if you did not do your job properly and collect all the certificates. So who, other than yourself, will be liable for the delay? Who, other than yourself, can the client blame? So who will pay the Liquidated Damages? Think about it.

Opinion, certificate, statutory declaration, warranty, guarantee?

President, the words opinion, certificate, statutory declaration, warranty and guarantee are all being used here and there. I am not a lawyer. I do not know the differences, if there be any, between a certificate and a warranty, a warranty and a guarantee.

All I know is that, to me, an Opinion is one thing; a Certificate is another, altogether more certain. If you were buying a car, would you prefer to get the dealers’ written Opinion that the car is working properly, or his written Certificate? To the layperson, construction is no different from cars. Of course we know better!!! But who cares what we know? Not the judge.

I’ll let the lawyers argue about whether this is also a statutory declaration, or a warranty, or a guarantee. The buyer and the Minister want certificates because they sense that certificates are certain. That’s enough, and I have a lot of respect for the intelligence of the Minister’s advisors and for the quality of the advice he is being given.

What about mitigation strategies?

Now to be sure there are possible “part-coping strategies” for this. I have already pointed them out to those colleagues working on “implementation”. I do not know whether they are taking those pointers on board. I am not writing those implementation papers myself. I refuse to contribute and lend whatever small prestige I may have, in implementing a system which I believe is a disaster for the profession. But I have, as you know President, and as you have generously thanked me and others for, I have commented in some detail on the “Implementation papers”. And I have never and will never stand in the way of those who wish to implement or in any way delay that work.

The reason I became involved in this review was to see whether the situation was retrievable by way of implementation paperwork. If it were, I would throw myself wholeheartedly into that task. I have concluded that it is not retrievable.

Unfortunately, no strategy can undo the underlying problem – here, that of the AC being shot at from all sides: BCA, contractor, client and specialists, at Practical Completion and beyond.

S.I. 9 exposes the Assigned Certifier intolerably at the time of hand over and the Certificate of Completion and it must be revoked and a better system put in place.

Is this all “Crying Wolf”?

President, some people are saying that this “liability furore” is a case of Crying Wolf, we had the same with Health and Safety, it’ll all blow over, this liability fear is a product of a few fevered imaginations, my own included. I only wish it were so.

This is a case of chalk and cheese. Health and safety is chalk; and S.I.9 is, unfortunately, cheese. When the finished job is handed over accident-free, thankfully the health and safety worries end. No accidents or notifiable events on site; and the PSDP’s worry as regards Safety and Health is over. But with S.I. 9, when the finished job is handed over, the DC and AC’s worries start. When the job is handed over, we are responsible to everybody for everything for all time and we have, as Mr. Parlon says, signed off on the contractor’s behalf.

Professional Indemnity Insurance

As for our Professional Indemnity Insurance protecting us here:- It won’t. It cannot. As regards criminal liability, our insurers cannot Do Time for us in Mountjoy.

Then as regards civil liability, the insurers will pay out – while pocketing our policy excess – on the first claim. But what about the second? And the third? Insurance underwriters are commercial companies with their primary duty to their shareholders. When this problem manifests itself, the Underwriters will walk away, in a manner similar to that over asbestos or pyrites. And the best efforts of RIAI Insurance Services, to whom many of us, including myself, are indebted for years of devoted advice, cannot bring them back. RIAI Insurance Services do not themselves underwrite the insurance and all their skilled hard work will not, that day, be able to help us. And, as we all know, if you don’t have insurance the day the writ arrives in the door – that’s the end of you. You are not covered.

If we act as Design Certifier or Assigned Certifier, we have that liability for the rest of our lives. Whether or not we continue to carry PII. And at what cost? Will your fee for acting as AC cover your PII for the next ten years?

It should also be said clearly that insurers do not defend every claim, even if unfounded. An insurer has a commercial duty to his shareholders to act in the company’s interest and not necessarily in the interests of you, the insured. It may be cheaper to settle a claim than to fight it. Many architects who have been sued know the feeling of being the fall guys and of having to pay out for something not their fault. Now that is another issue – Joint and Several Liability – and time does not permit me to share views on that one. But they do settle and one won’t blame them, whether it’s your fault or not. Witness the drunken man who fell over the wall.

Now President, I know there is work being done on Latent Defects Insurance, LDI. We are indebted to our colleagues Tony Reddy and Arthur Hickey in this regard. They “picked up the ball” thrown in by Michael Collins two years ago and we hope their efforts will bear fruit. The industry needs LDI, even when S.I. 9 is revoked and replaced by a better system. So keep going colleagues. But in the meantime, none of us should rely on our PII to dig us out. We cannot be the insurers of the Irish construction sector.

S.I. 9 must be revoked immediately.

An appeal to those of my colleagues who are not directly involved

Some of us, thankfully, will escape these problems. Work by building control authorities in their own functional areas is exempt. State work on Garda stations, Oireachtas buildings, the Justice Ministry and so on are all exempt from building control regulations. So my colleagues in those areas will not have to sign a Certificate of Compliance on Completion to be available on the public record for all time. And this is as it should be. But I appeal to my colleagues in those areas, and your motives in advocating S.I. 9 are good ones, I appeal to those in central and local government not to advocate that the rest of us, who work for other clients, actually take the responsibility for the builder’s and the engineers’ and specialists’ work. It is not right to ask us to take on unconscionable responsibility which you, happily and rightly, escape. Please do not use S.I.9 as a way of “bringing architecture in from the fringe” because the liability is unbearable for the DC/AC who must insure him- or her- self.

Please ask yourself, what is in the overall profession’s best interest? To elevate the evening’s proceedings for a moment, the principle of moral universality must or should apply. As Noam Chomsky wrote:-

“…if we adopt the principle of universality: if an action is right (or wrong) for others, it is right (or wrong) for us. Those who do not rise to the minimal moral level of applying to themselves the standards they apply to others—more stringent ones, in fact—plainly cannot be taken seriously when they speak of appropriateness of response; or of right and wrong, good and evil.”

If for other reasons you feel you cannot support us in our crisis, please stay silent. Please do not tell us that we, architects in private practice who are doing work larger than house extensions which is not fit out or conservation work, that we must assume responsibility of “re-centering the profession” by taking responsibility and giving certificates for other peoples’ work.

I have no problem taking responsibility for my work. But not for other peoples’ work and not for the builder’s work. I am not willing to indemnify the builder in respect of more or less every mistake he makes, for that is what signing the Certificate of Completion amounts to. Please stop expecting me to do as much.

There is a better system

President, as you know, there is an alternative to this law. There is a clear, simple, better system. Michael Collins and the Change Group have put dozens of hours into developing, first a “Better System of Building Control” and then also, a clear explanation as to why it will be better. Better for the Consumer because more certain of delivering better standards; better for the State because, still at zero cost, it insulates the State better from future claims; better for Architects because it delivers us from intolerable liability. You have been kind enough to thank myself and others for all the work put in since January last. We are almost there, this will be a huge step. But we cannot wait for that Better System. We need, now, to oppose S.I. 9 for the damage it does us.

The profession will not achieve a Better System on its own. But we have allies out there. We have allies in the Consumer Associations who want better consumer protection, the Development agencies who want simpler building and planning legislation, the fire officers and the building control officers who want better enforcement. These groups are not concerned about our profession’s problems and nor should they be. But they do want a better system for their own public-interest reasons. A better system is within reach. You know President, that it is being discussed much in Council.

At the end of the day, all the Minister for the Environment wants is a better system. We can help him get it. And I have every confidence in the ability of his officials to help him. I have the closest family members who have been in the civil service. I know the ethos of service to the public and of implementation of Government policy which drives the officials on. We have allies. S.I. 9 helps nobody except litigants and their paid advisors with “better traceability and accountability”. We need a better system and the Institute’s public endorsement of that need starts tonight.

So what about the “good parts of S.I.9”?

There is talk of keeping “the good parts of S.I. 9”.

But which parts are they? Contractor registration? The statutory registration of contractors and subcontractors is an excellent idea, and we all in this room have been calling for it for years. But S.I. 9 does not regulate for contractor registration. If you want contractor registration, S.I. 9 must change.

Latent Defects Insurance, LDI? Another excellent idea. and we have been calling for it, too, for years. But S.I. 9 does not include for mandatory LDI. If you want LDI, S.I. 9 must change.

Electronic lodgement of documents? Another excellent idea, and presumably the mess those of you currently face in trying to fill out your Commencement Notices and in lodging your certificates will be sorted out sometime.

But do not confuse those desirable features with a proper system of building control. S.I. 9 must be revoked and a better system brought in, and that can include new regulations with compulsory LDI, statutory contractor registration and a system of electronic lodgement devised by people who speak English or – and President you will forgive this from a Gaeilgeoir – even Irish as a first language.

Concluding remarks

President, I am sorry to have spoken at such length. I wish that I did not consider it necessary. There is no pleasure in having spoken out against this law for the past two years and in receiving more than a few knocks, innuendo and hurtful personal remarks along the way. This law and this position have cost me clients and my own money. But changing this law is so important, and so central to the future, not only prosperity but even I venture to say mental health, of architects, and of those around us here tonight, that it is necessary to speak out clearly and in specific detail. It’s the liability, President. Nothing else.

It is put to me that I and those who think like me are “on the fringe”, we are unrepresentative, that many respected colleagues are implementing this system. President, as Paul Kelly says, “Implementation is not endorsement”. Nobody should confuse these concepts. A profession which suffered in a construction sector where output declined by 85% since 2008 is a starving profession. People need bread.

And neither I nor those who share these views on Council have stood in the way of those who favour implementation; we have never held up an implementation document; we have not voted against spending members’ hard-earned money to pay people to write documents which it was clear the “implementers” would need these past fifteen months and more. But do not ask me to legitimise that work. No, we have never sought to delay the “implementation work” even if we are convinced that implementation is against the Profession’s interests.

This evening’s debate is not a game of fine words, “of moving the Profession from the edge to the centre”. This is about people in this room staying awake at three in the morning and worrying about what they have signed, about what they are being forced to sign, about what the builder is putting across them, about which greedy client or dishonest tenant or building user will think something up to get them and in how many years’ time.

The liability imposed by signing the Design and Completion Certificates in S.I. 9 is to everybody, about everything, for ever, on behalf of the builder, and is equivalent to a Statutory Declaration, and is intolerable for anybody who must insure themselves and their families against the risk; and it’s not just I who say so.

President, this motion must be passed. If we do not pass this motion this evening, S.I. 9 will be with us for years. It will then be too late to rescue the profession. It is time for the Institute to represent us, the architects of Ireland struggling with this infamous law, and in our legitimate interests oppose it as our first priority and have it changed. This is not easy. Especially it is not easy for your good self and for how this impacts on your own priorities as President, your wish to reform the Institute, a wish many of us share. This priority must be more important than any one person or small group of people here this evening and will be a huge step towards restoring the Institute’s reputation with the membership.

Some colleagues are concerned that this motion and even perhaps this speech is some kind of call to ignore the law, some kind of call to civil disobedience or something. That is absurd. I can decide not to assume the responsibilities of acting as DC or AC and demand that the law be changed. That is my right as a citizen of this country which is a democracy, and not a country which forces people to act under unjust laws.

President, colleagues, there are not two, but many, views in the room on this law. And there are likewise many views on the best tactics to be used in opposing it. “Seats at the table” and all that sort of stuff. Well, I put it to you – the “seats at the table” delivered us S.I. 9, and it is high time to try a different strategy. If it’s about defending our own legitimate core interests, our livelihoods, health and families:- may we not say publicly, Stop?

It was a great Englishman, John Maynard Keynes, who, when attacked for changing his mind, replied so memorably:-

When my information changes, I alter my conclusions. What do you do, sir?

Well, it seems to me that for many people in this room, the information around S.I. 9 has become clearer and clearer since 1 March last. It’s time to change your mind.

Tonight and until S.I. 9 is revoked and a better substitute in its place, this priority of protecting us, the practising architects of Ireland, must be our Institute’s first priority and Council must act to reflect that priority.

I support this motion. I thank my colleagues who were brave enough to requisition this General Meeting. We are all in their debt.

Colleagues, thank you for listening to me and for your patience in so doing.

Eoin O Cofaigh

President, the Royal Institute of the Architects of Ireland, 1998-1999

Honorary Member, Bund Deutscher Architekten

Honorary Member, Bund Deutscher Baumeisterer

Honorary Member, Soyuz Architektorov Rossii

Honorary Member, American Institute of Architects

Member, Building Regulations Advisory Body, 1991-1997

Author, “Building Control” in: Construction Projects: Law and Practice: Round Hall, 2007 – date

Architect in private practice, Dublin, 1981 – date

 

BCMS | Our questions answered

by Bregs Blog admin team

answer

On 7th August 2014 the BRegs Blog posed a series of 37 questions via an Open letter to the Building Control Management System (BCMS) on behalf of our readers (Link:). These were an edited compilation of questions that we received from our readers. The idea was that it would make for an efficient use of the BCMS resources if they replied to us in one email and we shared the information with our readers and followers through Social Media.

We are delighted to inform you that we had a swift and very comprehensive response from the BCMS Project Manager on 13th August 2014 and we are very grateful to her to be able to publish the answers received on behalf of the BCMS. As they are so detailed we have decided to group them into a series of posts linked by the subject matter of the questions to ensure maximum exposure.

The groups will be published next week as follows:

Monday 18th August:             BCMS – General Questions

Wednesday 20th August:       BCMS – I.T. Technical questions

Friday 22nd August:               BCMS – Process Questions

The BCMS Project Manager has undertaken to provide ongoing support so if you have any further questions or require clarification on the responses given please email us at: bregsforum@gmail.com

We have set out below the covering letter received from the BCMS as an introduction to establish the context in which the answers have been given to our questions.

Based on the success of this initiative the BRegs Blog have decided to instigate a similar collated questionnaire for some of the other stakeholder groups involved with the BC(A)R. We intend to write next to the Society of Chartered Surveyors Ireland (SCSI). If you have any questions that you would like us to ask the SCSI on your behalf please submit them to: bregsforum@gmail.com  on or before Friday 22nd August 2014.

Covering Letter from BCMS:

Dear BRegs,

Please find attached answers to your questions, please do not hesitate to contact me if you require anything further or need to look at the system etc.

It is important from the outset to state that the Building Control Management System (BCMS) is just that – a system for the management of the administration of Building Control as a means whereby the information necessary to demonstrate compliance with Building Regulation throughout design and construction is placed on the public record as the favoured means to ensure that the buildings in question are so compliant. The office that supports the delivery of the BCMS provides both technical support for the software that delivers the system and advice and guidance primarily in support of the work of Building Control Authorities (BCAs).

The primary responsibility for compliance rests with Building Owners, Builders – the two classes that are identified for the purposes of pursuing enforcement action by BCAs – and with the Designers and the Assigned Certifier who assemble the proposed building design and have it realised to completion.

The discretion in every case, regarding interpretation of Regulations and associated procedures, lies solely with individual BCAs. The BCMS, through its support for BCAs collectively and the fact that the information supporting submissions on compliance is held nationally on one database, being constituted as a Shared Service for local authorities is constituted with a structure whereby it can and does gather data and can and does exercise oversight in the interests of consistency of interpretation and the most efficient delivery of the services designated by Legislation and Regulation to the BCAs. In support of that function the recently-published “Framework for Building Control Authorities” encompasses the activities of BCAs under SI 9 of 2014 but also for a variety of other related functions of BCAs.

Regarding the discretion of BCAs in the matter of interpretation of Regulation the action consequent on their perception of any matter that it perceives to be non-compliant will proceed through a series of steps rising through the initiation of enforcement proceedings, each in turn providing an opportunity for the issue to be addressed – except in the case of an instance where, for example, public safety is at risk requiring immediate redemptive action. As is the case with Planning it would be very exceptional to find the Courts making judgement on technical interpretation confining themselves generally instead to examination of due process.

Yours sincerely

BCMS Project Manager

BRegs Blog | No. 500

by Bregs Blog admin team

500

This is the 500th post published by the BRegs Blog.

We wanted to use it to thank all of our contributors without whose invaluable assistance the BRegs Blog Admin. Team would have nothing to put out there. Some of you are named and some of you have contributed anonymously – for a variety of reasons. It does not matter as we all share the same goal of open debate and open source access to information.

Coincidentally, we are celebrating a few other ‘milestones’. We reached our highest ever daily number of viewers yesterday with 1552 unique views and earlier today one of you, reading our previous post, was our 140,000th unique viewer. As of yesterday we also have our 700th Twitter follower.

This 500th post is also a big thank you, to all of our readers, for all of your support and encouragement. While we continue to enjoy that backing we will continue to blog.

In keeping with  the ‘500’ theme for this post we thought it would be appropriate to provide the following links from the archives:

500 architects write to the Minister for the Environment outlining their concerns with the BC(A)R legislation:

500 architects gather at largest ever RIAI EGM to debate BC(A)R:

Regards,

BRegs Blog Admin. Team

 

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| S.I. 9 | Are consumers being conned? | Brian Rochford

by Bregs Blog admin team

Brian Rochford

Brian Rochford is a Passive House Designer and Architectural Technologist

Either SI 9 does or does not impose untenable liabilities on Assigned Certifiers. If it does then all must resist it. Engineers or surveyors will not rush into a space where architects will not. I think that if architects showed leadership then the rest would follow.

If architects do not lobby for laws that will actually deliver better buildings for society then who will? Politicians ? Civil Servants ? CIF ? Consumers Association? This is a crucial societal role for architects and they must expect that they will not make friends but enemies in that process – initially. In due course respect will be earned if the course is stayed.

Architects are now held in contempt by the Department of the Environment and architects have to address that reality. The former Minister, Phil Hogan T.D., has said things like architects must take their share of the blame for bad buildings, that they are gouging their clients (thus the AT register initiative) and that he was “empowering” architects – everything except respecting architects.  So architects have nothing to lose there.

However the case against SI9 is bigger than just how it impacts architects. Architects need to hammer home via every communication outlet that they can find that consumers are being conned. They need to point out that SI 9 will not prevent another pyrite or Priory Hall disaster. When that lack of prevention and enforcement is highlighted, consumers will realise that the state has further distanced itself from their plight.

In the bigger picture, the societal case against SI 9 has got nothing to do with architects and everything to do with Joe and Josephine homebuyer. We need to learn from other groups e.g. teachers who only ever lobby for their own pay and conditions “for the sake of the children”.

RIAI EGM | Who said what | Withdrawn

by Bregs Blog admin team

 

QuotationMarks

The BRegs Blog had published a series of comments and quotations from last night’s RIAI EGM earlier today. Following a request from one of the speakers we have withdrawn this post pending further review by the Bregs Blog Admin Team.

The reason for the request was as follows:

“Members on the night believed that they could speak openly, but privately to other members. By publishing what people said, the blog takes this away from people. I don’t believe we will be able to have such open debate at the next EGM if people believe what they say will be published.”

As all of our readers will appreciate the BRegs Blog is firmly on the side of open debate. We are happy to consider this request pending our review.

BRegs Blog Admin Team

News Alert | RIAI EGM Report

by Bregs Blog admin team

BRegs

The RIAI held an EGM in central Dublin last night. The 400- person capacity conference room of the Davenport Hotel was packed with registered architects, with standing room only. This was an extraordinary turn out for the time of year being in mid-summer holiday season.  This huge attendance and the lively debate that ensued proved how topical the issue of BCAR remains among approved professionals.

Architect Ciaran Ferrie, one of the ten EGM signatories, spoke in favour of the motion (see motion detail below). RIAI Council member, Toal O’Muire, spoke against. The RIAI President, Robin Mandal, then introduced Council members, Claire McManus (VP) and Joe Kennedy who gave a brief introduction to a ‘working- paper’ submitted to the RIAI July Council meeting of a proposal for an alternative SS3-Strengthening the System (Version 3) which is seemingly a strategy to replace S.I.9 that is currently being pursued by the RIAI. A ‘working-paper’ is apparently a proposal but not an adopted policy. We will publish details on this in future posts when we get them.

The debate that followed was by all accounts comprehensive and of a very high standard. However not a single speaker spoke in favour of S.I. 9 legislation. The core issue of disagreement was whether to adopt a public policy to revoke rather than disagreement over the problems with S.I. 9. Those against the motion focused on how the RIAI might look to the public and government and concentrated on unity in the profession. Those for the motion were critical of S.I.9 and indeed the handling of the entire BC(A)R issue and the delays in issuing information by the RIAI Council and its Executive to date. There is seemingly much room for improvement there.

Clarification was given on the night by the CEO of the RIAI, John Graby, that electronic voting was not permissible for an EGM. This was in response to a query from the floor at the large numbers of non-Dublin based architects who might have wished to participate in the EGM. However it is noted that E-voting is used for the RIAI Council member elections.

In the end a vote was taken on a compromise  to defer having a vote on the resolution below for a three month period with a mandate given to the RIAI Council to pursue the SS3 change agenda with the utmost speed and resources. The same motion will be presented at a future EGM in November. This was carried by a two-thirds to one third vote.

The big winner on the night would seem to be the reputation of architects, with their responsible behaviour taken in the interests of their profession, their clients and the wider construction industry in the face of this appalling piece of BC(A)R legislation. The big loser continues to be the consumer and building owners.

The purpose of the EGM was that the Registered Members debate and vote on the following Special Resolution to be adopted or rejected:

Resolution 1: 

For the reasons outlined above and in the interests of the registered members, the consumer and the wider construction industry, we the Registered Members, call for the RIAI Council to adopt as their first priority a policy to seek publicly the revocation of the Building Control (Amendment) Regulations: S.I. 9 of 2014 and its replacement by a system which better protects the consumer and to actively reach out to other groups to seek support for that policy.

RIAI EGM: Update 12th August 2014

by Bregs Blog admin team

PRo CON

The BRegs Blog has consistently sought Opinions and Comment on the Building Control (Amendment) Regulations S.I. 9, both for and against this legislation. To date we had received only one pro-S.I. 9 formal submission and we had intended to publish it today in view of the RIAI EGM being held later this evening to debate S.I. 9 policy. Unfortunately the person who drafted the pro-S.I. 9 Opinion withdrew permission for us to publish it last night during its final proofing stages. However this process did raise a few issues and we are happy to publish the following clarifications in relation to this evening’s RIAI EGM and previous posts published by the BRegs Blog.

RIAI EGM Venue:

The RIAI EGM will be held in the Davenport Hotel at 6 p.m. this evening and NOT the Alexander Hotel where a previous EGM was held last year. They are across the road from each other so if you do go the wrong venue; it will only take a few seconds to get to the right place.

S.I.9: Alternative:

Confusion has arisen that if S.I. 9 is revoked/withdrawn there is no alternative? We are advised that there is a well thought out, well researched and fully implementable system which is currently in final draft stage (essentially crossing t ‘s and dotting i’s) which will give both better buildings and properly apportioned liability and responsibility.  The RIAI EGM motion is most definitely not being proposed in a vacuum. It is being proposed knowing that a credible and realistic alternative system is ready which can be introduced, relatively simply, by regulation under the existing Building Control Act.

Timing of the RIAI EGM:

Many have queried as to why the EGM was called during the holiday season, in particular as the RIAI council itself does not meet during August.

Dr. Sandra O’Connell, RIAI Communication Manager has written:

“There has been some concern expressed by Members about the date of the EGM and a perception that in some sense there was an attempt to choose a date which would reduce the number of those attending. The requisition by the ten Members was received on 13 June. Company Law requires notification of the date, time and place of the General Meeting to make it more than 21 days from the requisition. In addition, Company Law requires the General Meeting to be held within two months of the date of the requisition. If this process is not followed then the requisitionists can themselves organise a General Meeting and fix the Institute with the associated costs.”

The request for the EGM was received by the RIAI on 13th June 2014. As  3 weeks’ notice were required to call the EGM, this meant a date of around the 8th July (approximately 5 weeks ago) would have been the earliest possible date for the EGM. The 12th August 2014 is the last possible date on which the EGM could be held and we believe this date was selected by the RIAI Council, Officers and/or Executive.

S.I. 9 and Insurance Claims: Deirdre Lennon MRIAI

by Bregs Blog admin team

Deirdre Lennon

Deirdre Lennon MRIAI is a Director of Gilroy McMahon Architects and an RIAI Council Member 2014

It is hugely unfortunate that the Royal Institute of the Architects of Ireland (RIAI) did not provide a forum for discussion on the proposed Building Control (Amendment) Regulations (BCAR) nor did it ask the membership to contribute to an informed discussion at the appropriate time. You will all recall back in May 2012 when the RIAI invited us to write directly to the Dept. of the Environment on the matter and copy in the Institute. At the time I wrote a strong letter of protest outlining my many concerns but I heard nothing from either recipient.

At the RIAI Annual Conference in 2013, those opposed to the proposed S.I 80 legislation were denied access to the podium. Balance was not offered by providing information for and against the legislation. Alternative perspectives and well considered opinions  on BCAR were not welcomed.

The support given to this legislation without reference to the membership is at the centre of our current problems. Opposing views to BCAR have not been heard and this practice, as I see it, continues. Change in this context is challenging.

The membership will be aware that S.I. 9 is seen by some as having direct benefits for architects as a new source of income or as a reborn power base  in the construction sector. Seeing us as the most appropriately trained for the role of Design and/or Assigned Certifier is for me the most challenging of all contentions.

In practice when legal actions arise Architects as Assigned Certifier and Design Certifier will have to rely on their Professional Indemnity Insurance policy, and hope for a fair hearing.

In reality I believe the situation may be different. We know of a recent case where a claim was settled rather than fought by the Professional Indemnity Insurance company without reference to or agreement of the defendant. The insurance excess was called upon without the lead architect having any say in a legal dispute which was more appropriately between a third party consultant, the ‘expert designer’ and the injured party.

The Architect as Assigned and Design Certifiers will take responsibility in law for others by accepting responsibility for certifying that the work of others complies with BCAR – the benchmark test in many if not all claims.

Architects acting as Assigned Certifier and Design Certifier have been advised that Professional Indemnity Insurance is readily available at market rates. The reality is that the Architect as Assigned or Design Certifier has increased his/her risk exponentially.

The new Assigned Certifier’s and Design Certifier’s Certificates will provide legal certitude and valid support for the claimant in all cases. This will increase risk for the Insurer who will seek to reduce his costs and as in the above case, in all probability, settle prematurely. I predict that there will be little appetite to examine the details of the case or take action against the Ancillary Certifier or Contractor and the Architect will be left to legally pursue the Ancillary Certifier/s and/or Contractors independently and at their own costs.

S.I 9 has been poorly considered and is not a sustainable model for creating a mature and responsible construction sector.

Deirdre Lennon MRIAI

 

S.I. 9 and Construction Products: Orla Hegarty MRIAI RIBA

by Bregs Blog admin team

OOH

 Orla Hegarty B.Arch. MRIAI RIBA is Course Director for the Professional Diploma (Architecture) at the School of Architecture, UCD and a Member of the RIAI Council 2014

In May of this year, An Taoiseach Enda Kenny TD said that the government “will not tolerate any more Priory Halls or pyrite housing estates” and that it has already “introduced new reforms that will prevent the mistakes of the past being repeated”. So, will the new building regulations sort out the pyrites as claimed? The BRegs Blog asked Orla Hegarty MRIAI who recently published a paper on the Construction Products Regulations to comment.

Opinion: A detailed look at the Construction Products Regulations (CPR) and the revised Part D of the Building Regulations indicates a significant area of potential liability for architects and other professionals.

S.I.9 calls for the Design and Assigned Certifiers to ‘certify’ that the building materials are fit for purpose and in compliance with the CPR. This means that the Assigned Certifier signs off on the building materials, even though he/she is not responsible for the procurement of the products or their installation.

Where pyrite or another defective (or fraudulent) material is later identified a Completion Certificate that ‘signs off’ of on  the  building will be a critical document in any future litigation. A recent landmark legal case in Canada (Link:) makes very interesting reading in the context of the Building Control (Amendment) Regulations 2014. In this case (under Canadian law), liability for a pyrite claim of CDN$200m (€134m)  was shared between the general contractors/ concrete formers, concrete mixers, the quarry and the geologist- all of whom had insurance to cover the risk. The supply chain in Ireland does not have these safeguards and S.I.9 is framed to place liability on the site inspector rather than the supplier or contractor.

An architect who has has no control over the supply chain, delivery or installation needs to be very careful.

Link to CPR paper:

 

 

S.I.9 and Employees: Eoin O’Morain FRIAI

by Bregs Blog admin team

Eoin O'Morain

 

Eoin O’ Morain FRIAI is a Director of Scott Tallon and Walker Architects and a Member of the RIAI Council 2014

The advice from the Construction Industry Council (CIC) about the personal liability of employees points out a significant flaw in the Building Control (Amendment) Regulations: S.I.9.

S.I. 9 calls for the Assigned Certifier to be a person not a company. It has been assumed that a person signing “for and on behalf of” a company would not be personally liable or that a claimant would pursue a “man of straw”.

The case of Mr. Babb, a surveyor, shows that this is not the case and puts all architects, or other approved professionals, who sign as Assigned Certifier at considerable personal risk if they do not take very careful and costly action to avoid liability.

Link to CIC Briefing: Personal Liability of Employees

Architects need to check that they are covered in a personal capacity by Professional Indemnity Insurance (PII) policies while acting as Assigned Certifier and that the wording of the standard RIAI conditions of engagement between Client and Architect, where used, are altered to protect their interests. Employees also need to clarify the status of their PII cover in the event that they terminate their employment with a firm with whom they undertook the role of Assigned Certifier. It is particularly important for contracts of employment and for members retiring as sole practitioners who need to maintain PII cover for 15 years after retirement to cover the S.I. 9 liability.

Assigned Certifiers also need to check that their PII policy covers non-negligent acts or omissions. You can still be liable in tort to third parties who rely on your certificate even if they are not the beneficiary of the certificate.

Eoin O’ Morain FRIAI

babb1.pdf [Converted]

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BRegs Blog Archive 4 – FEBRUARY 2014

by Bregs Blog admin team

archivesnat

Don’t forget our archives!

Many recent readers will not be familiar with our February 2014 posts.

Click on the following link and scroll through the second month’s posts we published- subjects are very relevant to many issues we are currently experiencing.

Click title: BREGS Blog Archive 4- FEBRUARY 2014

In this month we posted:

  • In an interview on RTÉ Radio’s ‘Morning Ireland’, former Minster Hogan stated all stakeholders were ready and supportive of implementation of the regulations. He also confirmed the cost per house for SI.9 of between €1000 and €3000. He suggested any other larger estimates are “wild exaggerations”. He contradicted official spokesperson for the representative body for architects (RIAI) Joan O’Connor and suggested that recent calls for deferral were ill-timed and are made not officially by the RIAI but by a minority of architects. (see link here)
  • Contrary to Ministerial statements we tabled industry estimates of the annual cost of  SI9 up to €500 million per annum (see post here). This was in contrast to the government’s launch a new annual action plan for jobs.  We noted the Industry estimates (by 2020) of the cost of SI.9 could be €3bn, the equivalent to 30,000 jobs (see post here).
  • Councillors in Donegal suggested consumers lodge commencement notices as quickly as possible (in advance of implementation) citing additional costs for SI9 at over €15000 (see post here). We now know the equivalent of 70% of the total commencement notices for 2013  were lodged nationwide in January and February of 2014.
  • The catastrophic effects on livelihoods of non-registered professionals in the industry of SI9 was discussed on  RTÉ liveline radio programme (see post here). The complete exclusion of Architectural Technologists from the register of competent professionals was discussed in an early opinion piece  (see post here). Joe Duffy: “what government in their right mind would make people unemployed?”.
  • The self builders representative organisation (IAOSB) launched a high-profile nationwide campaign to political representatives to defer SI.9 (see post here). Adding to self-builders’ woes the RIAI joined the Construction Industry Federation (CIF) in confirming that self-building was banned under SI.9 (see post here). Self-Builders lodged complaints to the European Ombudsman as to the anti-competitive and restrictive practices enshrined in the SI.9 (see post here).
  • Mark Daly TD in the Dáil asked had a Regulatory Impact Assessment (RIA) been undertaken for SI.9? The answer- no (see post here). An RIA was completed for a 2012 version of SI.80- none for SI.9.
  • The representative body for chartered surveyors (SCSI) warned more Priory Hall scenarios could happen if the laws are not enforced and suggested proper enforcement by local authorities was required. See post here.
  • We read how house builders in Wales blamed red tape for a 12% drop in construction in 2013 – very interesting story in the context of our current continued fall in commencement notices following implementation of SI.9 (see here).
  • We wondered if the completion stage under the new regulations and lack of resources allocated to local authorities was going to be a recipe for disaster. See post here.
  • In “The compelling case for Deferral of Building Control (Amendment) Regulation (SI.9 of 2014)” we listed out the reasons for deferral listed in the RIAI letters to Minister Hogan and Bruton. We can see, looking at the upcoming RIAI EGM requisition by members, that these reasons are still very much relevant 6 months on (See here).
  • Current RIAI policy to appoint a completely separate Assigned Certifier on projects (a separate appointment to that of architect) was first published this month here.

Scroll through our earliest posts which are in reverse chronological order-

Previous Archive posts (click title):

BREGS Blog Archive 3- JANUARY 2014

BREGS Blog Archive 2- DECEMBER 2013

BREGS Blog Archive 1- NOVEMBER 2013

Other popular “top read” posts:

Ombudsman Complaint- Minister and Fee Fixing: SI.9

by Bregs Blog admin team

 

making_a_complaint

In an previous post a registered architect sent a complaint about the Department of the Environment, Community and Local Government (DECLG) and Minister Hogan’s statements regarding fees for professional services associated with new roles under SI.9.

Here is a another complaint by a registered professional on the same issue sent to the Ombudsman. Many engineers, architects and surveyors are frustrated by the DECLG and the Minister’s repeated cost range for SI.9 of between €1,000 and €3,000 per dwelling. Quote from the previous post (see here):

“…we wonder have any of the representative bodies concerned, engineers, surveyors or architects (ACEI, SCSI, RIAI respectively) made similar representations, on behalf of their members, to the Minister or Department? If not it looks like their members are facing an uphill battle with clients, trying to agree a sustainable fee for the new certifier roles, with Ministerial public statements on costs uncorrected.

We note subsequent to this complaint being lodged in an Engineers Journal article by Orla Fitzgerald (BCMS spokesperson for the representative body for architects (RIAI)) the additional time needed for new SI.9 roles for a €500k building was noted to be 18 days. Again quite at odds with the DECLG quoted indicative costs. See post here.

The Ombudsman complaint is as follows. We are not aware of any escalation to Europe on this matter at time of writing. Personal details of author have been removed at the author’s request.

__________

Please find below my complaint against fee fixing and distortion of the market with respect to professional services associated with Building Control (Amendment) Regulation (SI.9 of 2014) 

Dear Ombudsman,

Please find below my complaint against fee fixing and distortion of the market with respect to professional services associated with Building Control (Amendment) Regulation (SI.9 of 2014)

Here are my contact details:

Name and Address of Parties Complained About:

Minister Phil Hogan, Leinster House, Dublin 2. Email: minister@environ.ie; Tel (0)1 888 2403; and Department of the Environment, Community and Local Government Tl 1890 20 20 21 or+353 (0)1 888 2000; email: press-office@environ.ie

Details of complaint:

Minister Hogan in numerous occasions recently has quoted fees for the new Design and Assigned Certifier roles under Building Control (Amendment) Regulation (SI.9 of 2014) at between €1000 to €3000 maximum per house. This fee range was noted in a regulatory impact assessment undertaken for SI.9 (previously SI.80) in 2012. This fee range is below-cost and inhibits free market forces, distorting the market in the process. The Minister for the Environment has spoken on the airwaves, on the major morning news programme on the principal broadcaster,  about the fee which a house owner could expect to  pay for an architect to act as Design Certifier and Assigned Certifier under the new regulations. Many of my clients, whether actual or potential, listen to this programme. The matter is of such personal importance to those people, that they will remember the advice of the Minister.

The Minister has said that my clients can expect to pay “between €1000 and €3000” for these services. This has now made it impossible for me to say to my client that the fee should be a multiple of these figures, as my clients question my professional honesty. These services are necessary on all new dwellings and on all extensions to dwellings exceeding 40 square metres (about 430 square feet) starting after last Saturday [March 1st 2014]. This is a major portion of my business and of my family’s livelihood.

This inappropriate intervention by the Minister gives me a choice to:-

  1. Withdraw from the market, with the consequent loss of my livelihood;
  2. Quote a fee which is a multiple of what the Minister has said, causing my clients to doubt my integrity;
  3. Undertake the work at a fee equal to, say, the highest figure which the Minister has said, but which is then only 20% of what I need to charge to break even for an annual personal income of €60,000.

Details of Goods or Services:

Professional costs associated with the provision of the duties of Design and Assigned Certifier under Building Control (Amendment) Regulation (SI.9 of 2014).

Evidence to Support Claim:

Regulatory Impact Assessment completed by DECLG in 2012 (pdf copy attached). Numerous written answers by Minister during January and February 2014 along with 28 February 2014, Morning Ireland RTE News, Minister Phil Hogan:

“No it will not be expensive! All this exaggeration about thirty, forty, fifty thousand and that direct labour was going to be out the window or banned as a result of this is absolute nonsense. It’ll cost about one to two thousand euro depending on what figure they negotiate with professionals.

Copy of transcript of interview attached. In addition Dail debate from 27th February 2014: Minister Phil Hogan to Barry Cowen TD (link attached)- quote:

I assure Deputy Cowen that all of the nonsense on RTE this week is absolute misinformation to the extent that it is being claimed that the cost of building a house by direct labour in a rural area will increase by as much as €50,000. Additional compliance should cost between €1,000 and €3,000, depending on market forces and where the best deal can be secured. I encourage small business professionals, such as draughtsmen, to register with the professional bodies in order that they can act as assigned certifiers.”

Reasons given to you but the firm being complained by you:

The roles of design and assigned certifiers can only be undertaken by three registered professional bodies. The architects representative body the RIAI issued CPD advice recently at a CPD event on monday 24th February 2014 in the Aviva stadium to over 500 members on the issue of hours required to undertake these new roles under the regulation. The presentation suggested 160 hours was required for a typical house for these roles. Copy of Shane Santry presentation attached. This would indicate €6.25 per hour as an hourly rate including vat at 23% for a competent engineer/ surveyor or architect to undertake these duties. This is a significantly below cost figure. This also distorts the market for any other EU registered professional wishing to compete for services in Ireland.

How does this affect your business?:

I was asked to do a fee proposal for a typical house. To provide a fee for services associated with SI.9 I indicated a reasonable fee for a suitably qualified engineer earning a salary of €60k per annum would be in the region of €90- €100 per hour, including salary, professional insurance, overheads, office and other costs. Based on RIAI (representative body for architects) guidance the cost for the roles of SI.9 would be €15,000.

The minister’s statements and departments specific figures has now made it impossible for me to say to my client that the fee should be a multiple of these figures, as my clients question my professional honesty. This is a multiple of the indicative costs issued by the Minister and the Department and could only be achieved at below-cost tendering. As such the Ministerial and Department guidance is distorting the marked and is precluding me from earning an income. These statements need to be retracted by both Minister and the Department immediately and public correction issued.

What is your relationship to the firm(s) being complained about?:

The Minister and Department responsible for current legislation affecting the construction industry an my profession.

Status of complaint:

I am a registered professional under the Building Control 2007 Act, an Architect, and a consumer. I am a registered member of the Royal Institute of the Architects of Ireland and the Royal Institute of British Architects.

Details of anyone who may be able to provide further information regarding the complaint:

• Shane Santry, RIAI, 8 Merrion Square, Dublin 2, Tel: 01-6761703; He was the RIAI CPD Speaker on additional hours required. The RIAI are the first of three registered professional bodies.

• Robin Mandal, RIAI, 8 Merrion Square, Dublin 2, Tel: 01-6761703; He is current RIAI president.

• Toal O’Muire, RIAI, 8 Merrion Square, Dublin 2, Tel: 01-6761703; He is RIAI past- president.

• Anne Potter, Chief Executive, ACEI, 46 Merrion Square, Dublin 2.Rel.: (01) 6425588; Email:info@acei.ie These are the second registered professional organisation.

• Kevin Hollingsworth, The Society of Chartered Surveyors Ireland, 38 Merrion Square, Dublin 2:Tel: (01) 6445500; Email: info@scsi.ie. He is spokesperson on BC(A)R SI.9 for surveyors, the third registered professional body.

Information attached:

Copy of Shane Santry CPD presentation form Aviva RIAI CPD on Monday 24th February 2014

9. Shane Santry -Estimate of Hours required – BCAR CPD

Copy of transcript of  February 2014

Morning Ireland_28Feb2014(PhilHogan)

Copy of Regulatory Impact Assessment 2012

ria 2012 (si80)

Building Regulations Application: 27 Feb 2014: Dáil debates (KildareStreet.com)- click link here.

RIAI EGM : Seven issues for architects to consider

by Bregs Blog admin team

brightLightBulb

RIAI EGM : 7 issues for architects to consider

We look at some of the issues noted in the recent resolution for an EGM in the Royal Institute of the Architects of Ireland (RIAI) the representative body for architects. This was called for by members and is scheduled for Tuesday 12th August 2014.

Here are some of the headline issues that affect consumers, other registered professionals and industry stakeholders that attendees might wish to consider.

1. Consumer rights

In her guest post Deirdre Ni Fhloinn, specialist construction lawyer, noted the lack of any new consumer protections in the Building Control (Amendment) Regulations S.I. 9. Quote:

“There are no new legal rights or remedies for consumers created by BC(A)R  S.I.9 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.”

Read her post Legal perspective: consumer benefit? BC(A)R SI.9

2. Paper trail or blizzard of red tape?

Will the extensive new paperwork and administration of SI.9 create what previous Minister Phil Hogan intended, a record to track liability for consumers in the event of a defect occurring; or is it just a meaningless additional paper exercise? Quote from our post:

“What appears to have been delivered, at enormous cost to the industry and consumer, is an inadequate online system that is not secure and can be easily manipulated; a public record that does not keep any of the technical documentation lodged for access by consumers (only notices received and issued as confirmed in the Code of Practice) and finally a regulatory system that does not deliver any improvements to technical standards or enhancements to consumer protection.”

Read this post and the Minister Hogan’s Dáil statements- Clear and auditable trail: consumer protection? BC(A)R SI.9

3. Pyrite and defective materials- still with us?

Given the recent occurrence of pyrite in defective blockwork and numerous high-profile demolitions around the country, will SI.9 bring an end to the issue of defective building materials, or just further distance local authorities from their market surveillance responsibilities and place a target on one Certifier’s back?

Quote from the new Minister Alan Kelly :

While the new regulations do not make explicit reference to Declarations of Performance for construction products, given the regulations require both the design professional and the assigned certifier to sign statutory declarations (the latter in conjunction with the builder) certifying that the building/works has been designed and constructed in compliance with the requirements of the Building Regulations, Declarations of Performance may be relevant as a means of demonstrating that “proper materials” have been used in accordance with Part D of the Building Regulations”

Read his comments and in the post Are Design and Assigned Certifiers risking professional suicide with Pyrite and S.I.9?

4. “on behalf of the builder?”

Have a listen to the senior executive of the Construction Industry Federation (CIF), Tom Parlon,  on the radio show “The Last Word” and consider, have the builders gotten away with it? Have Builders ended up with less responsibility for their work under SI.9 than they had under the previous system? Quote from Tom Parlon:

There are penalties already under the new building regulations, everything must be signed off by a competent Assignee, who can only be an architect, a building surveyor or an engineer, and in signing off ON BEHALF OF THE BUILDER (our emphasis), there are obligations there and they have to stand over those”

Read post and listen – Tom Parlon – the Last Word.

5. Reasonable liability or one Target?

Do we have a reasonable system that allows everyone to share proportionate liability should a defect occur, or are we back to earlier versions of SI.80 with one person taking responsibility for the entire building process, issuing unqualified guarantees on behalf of the entire design team and the contractor? Quote from our post:

The Law Society Practice Note to all solicitors says that the Completion Certificate only will be used for conveying property. This means that the buyer will only have the Completion Certificate and none of the supporting documents or Ancillary Certs. It’s back to single point responsibility.”

Read Liability – single point: Law Society : Certifier is single point of responsibility

6. Are builders and developers off the hook?

Are they really off the hook or is SI.9 playing with words? Builder/developers are coping with the new administrative roles and requirements. Quote:

This arrangement in the build-for-sale sector, where a registered professional is a direct employee of a developer, will minimise the administrative burden of the new regulations on developers while allowing them to retain a separate design team on minimum service contracts as before, for the initial stages of a project only (and planning compliance).”

Read Opinion: Are builders + developers off the hook with BCAR?

7. “It’s in now, let’s get on with it”

Architects are being told “the train has left the station”, “move on and get on with it” etc. How are developers ‘getting on with it’? Are they driving the train? Quote:

Developers can set- up project-specific companies (a shelf company) for each development. In many cases this is done for financing/ licensing purposes anyway and each company is folded-up after completion to minimise liability. Everyone else will get sued except the main beneficial owner, the developer.”

Read the thought-provoking submissions of professionals from the speculative sector in business as usual? How developers are “adapting” to the new Building Control regulations

 

Still dazed, confused, don’t know where to start?

Help is at hand- read SI9- Where do I start? SI.9

Why bother? Read archive history of BReg Blog in our archives:

BREGS Blog Archive 3- JANUARY 2014

BREGS Blog Archive 1- DECEMBER 2013

BREGS Blog Archive 1- NOVEMBER 2013

BCMS: Open Letter

by Bregs Blog admin team

 

BCMS Questions

Further to the BRegs Blog request (Link here:) for questions to submit to the Building Control Management System (BCMS) we sent the Open Letter below to the BCMS Senior Engineer at Fingal Co. Council who had very kindly offered to try and answer questions on the system. We will circulate any response received as soon as possible.

Dear Madam,

We noted your very generous offer to accept questions on the Building Control Management System (BCMS) in the absence of responses to emails sent to the contact form on the BCMS website over the past five months. We are writing on behalf of our 1100 Blog followers, 700 Twitter followers and 600 Facebook followers. We have collated and edited the 37 questions we received below to be representative of those received. We feel it would make the most efficient use of your time if you were able to respond to us directly on these and we could then disseminate your reply to a wider audience via Social Media.

Thanking you in advance for your cooperation.

Yours faithfully,

BRegs Blog Admin Team

Q.1 By far the most frequent questions we received related to possible S.I.9 exemptions e.g. borderline extensions with floor areas circa 40 mwhere our followers sought reassurance on behalf of building owners. Is it possible to apply to the BCMS for a formal Declaration or Certificate of Exemption from S.I 9 similar to a Section 5 under the Planning and Development Acts?  If not, do the BCMS intend to issue guidance on exempt works or will this be left to the courts to determine?

Q.2 Do the BCMS intend to publish sample BCMS validated submissions for a selection of project types as industry standard examples? If so, when do the BCMS hope to do this and are the professional bodies involved in this process?

Q.3 Is there any appeal process if a building owner feels that a Commencement Notice was incorrectly invalidated by the BCMS and/or Building Control Authority? If not, is the only redress to take court action and would this be against the BCMS or the Building Control Authority?

Q.5 When will it be possible to submit Completion Certificates online?

Q.6 Is it correct that it is not possible to submit ancillary certificates and supporting documentation with Completion Certificates?

Q.7 Who is responsible for ensuring that an Assigned Certifier is suitably qualified.

Q.8 Does the BCMS check the identities or qualifications of Design and Assigned Certifiers?

Q. 9 What action will the BCMS and/or Building Control Authority take if they are made aware that someone acting as a Design or Assigned Certifier is not suitably qualified?

Q.10 What advice should be given to a self-builder, who is not a Principal or Director of a Building Company, when signing Section 4 of Part A of the Certificate of Compliance on Completion e.g. should they scratch out the relevant phrase “to be signed by a Principal or Director of a Building Company only”?

Q.10 Does the time period for notification of a change of builder i.e. 14 days refer to a notification that you intend to change builder or is one expected to provide details of the new contractor within 14 days. The latter may prove difficult in practice and it is noted that failure to do this is an offence? What is the procedure for doing this e.g. can it be done online??

Q.11 Does the BCMS intend to conduct any public information campaign through national media to inform the public and building owners of their responsibilities in relation to the BCMS?

Q.12 Is it possible to introduce a facility to edit documents prior to and/or post validation?

Q.14 What advice would the BCMS give to someone who inadvertently carried out building work since the 1st March 2014 that was not exempt from S.I. 9 and who did not submit a valid Commencement Notice?

Q.15 In the event that the BCMS discover an irregularity in documentation submitted post-validation what action will be taken?

Q.16 Do the BCMS intend to provide a user guide to the system?

Q. 17 Do the BCMS intend to provide comprehensive predictive answers or hints on the system?

Q.18 Do the BCMS maintain contact details of those using the system in order to advise them directly of ongoing changes e.g. the recently introduced “role acceptance”?

Q.20 Are Commencement Notices validated by the BCMS before issue to the 34 individual Building Control Authorities?

Q. 21 How does the Design Certifier upload additional documents for design changes during the construction phase or ensure that the correct documents have been uploaded at or before completion?

Q.22 What is the timescale for validating design changes and/or designs not submitted at commencement notice stage?

Q. 23 Is it possible to resign as Design and/or Assigned Certifier post Commencement Notice validation e.g. in part service appointments to developers who have in house assigned certifiers some design certifiers may be unwilling to continue in the role, particularly if sites are sold on to persons other than the original owner who commissioned and appointed the design certifier. If such cases, what is the process for doing so?

Q.24 How does one address the situation of a change in Design Certifier mid-project e.g. changing from a Civil Engineer on the piling for an enabling works contract onto an architects as the Design Certifier for a Main Contract. Do such changes have to be notified to the BCMS and if so, how is this done?

Q.25 In instances where Assigned Certifiers become aware of non-compliant work and resign, or where builders are not undertaking recommended remedial works during the course of construction, Assigned Certifiers may have no option but to resign. Is there a responsibility on the Assigned Certifier to notify the BCMS and/or Building Control Authority of such infringements?

Q.26 Are there any plans to increase the speed for uploading documents and negotiating between pages on the system?

Q. 27 Is there a limit on the capacity of the system and/or individual uploads?

Q.28 Is the Local Government Management Agency correct in their statement that the BCMS will not be fully operational for 18 months after 1st March 2014?

Q. 29 Under S.I. 9, and not the Code of Practice, is the submission of a Commencement Notice and accompanying documentation officially considered an ‘application’ or a ‘validation’?

Q. 30 Does the BCMS have a published API such as REST that external applications can use to read and write to the BCMS system? If yes, are there examples of its usage? If not, do you plan to introduce this functionality?

Q .31 There has been speculation that the BCMS is linked to the Revenue Commissioner’s system and may be used to identify tax evasion. If so, why has this been kept secret?

Q.32 What rights do those engaging with BCMS have under data protection to see and/or correct personal data and in particular to be made aware of any ‘red flags’ against them and any right of redress?

Q. 33 What advice, if any, was sought in relation to Freedom of Information (by any future building owners) and Intellectual Property and confidentiality of information loaded to the BCMS.

Q.34 Who are the website developers and were they procured through the public / E-tender procurement process? There is a story (attributed to you) doing the rounds that the reason there are so many glitches with the system is that the developer’s first language was not English!

Q.35 Of the 1645 Commencement Notices submitted since the 1st March until the 5th August 2014 how many, if any. have been ‘red-flagged’ at validation stage?

Q.36 Is it planned that a Commencement Notice can be deleted once started (prior to submitting for validation)?

Q.37 Is it planned to have an easier online method of unlocking documents to upload newer versions other than contacting the Building Control Authority?

BCMS Guide – Update: Mark Stephens MRIAI

by Mark Stephens

update_active_directory

Earlier this year I wrote a short guide to the Building Control Management System (BCMS); the online system of lodging commencement notices under S.I. No.9 of 2014 and this post gives an update following my first Building Commencement lodged yesterday:

A critical step missing from the previous post concerns the nomination of roles (Nominate Roles tab); this is where the Owner(s), Designer, Assigned Certifier & Builder are specified:

nominate

Two important comments regarding these nominations:

• You will not be able to download or upload any Statutory Documents or Supporting Documents until these roles have been nominated AND accepted via the email that you’ve specified during nomination. This system change has occurred only in the last few weeks. The screen-grab below shows the email from BCMS via localgov.ie indicating the acceptance of a role:

accept

• It is the ‘Nominate Roles’ that flags to the Local Authority Building Control Department if any of the roles are the same; it is proposed (in recent CPD) that additional Building Control inspections would occur if the Owner and Builder were the same person for example.

Other key aspects of the system include:

• Secure payment via credit card for the Commencement Notice cannot occur until ‘project details, roles, assessments and documentation are complete.’

• When the payment has been made, the Commencement Notice is then forwarded to the relevant Local Authority for validation:

• The Local Authority then validates the Commencement Notice and confirms this via email:

la

Due to the time span involved (Commencement Notice was lodged at 9pm and validation occurred at 9.30am the following morning) it does not appear that the Local Auhority is undertaking any further validation (other than that handled online by BCMS) or at this stage any Building Regulation compliance which would not be part of the validation procedure in any case.

Other posts of interest:

No checks of Designer, Builder or Assigned Certifier on #BCMS

Engineers Ireland CPD 10th June

BCMS: Data protection or tax collection?

BC(A)R SI.9- BCMS: “must do better”

ALERT: Cork CoCo guide to BC(A)R SI.9

BReg Blog ALERT: Data Protection & BCMS

Building Control Officer issues: Conference April 2014

Building Control Officers need help! BC(A)R SI.9

RIAI EGM: Open Letter to Members

by Bregs Blog admin team

Open Letter

The BRegs Blog received the open letter below with a request to assist in its circulation  to RIAI members among our readers. It relates to Tuesday’s EGM.

Dear Colleague,

This e-mail is to remind you of the EGM to be held at the Davenport Hotel at 6 p.m. on Tuesday 12th August. Those of you attending last years EGM will know a subsequent EGM was promised by the then President, Michelle Fagan, to debate the final form of SI.9 (previously SI.80) and vote to accept or reject the new law. This promise was re-iterated at the November 2013 Council elections EGM.

You will be aware of the RIAI Election campaign under the banner of the BRegs forum, which was hugely supported and managed to get some of the most respected and experienced names onto council.

The BRegs forum evolved into the Bregs Blog, now the go-to source for all information on BC(A)R.

Since the RIAI Council election 8 months ago there has been extensive debate and many differing viewpoints taken, but ultimately the position is that the roles of assigned and design certifier were introduced on 1st March 2014, and are now law. SI.9 must be implemented, for better or worse. We have no choice in the matter. However we can vigorously protest SI.9 and request it be revoked and replaced with a system that is better for the consumer, the profession and the industry.

The EGM essentially calls for the revocation of SI.9 but  crucially, also calls for its replacement with a better system of Building Control.

Six months after SI 9 became law, we have the chance to have our say. Our peers and our colleagues are people who have dealt with the problems thrown up by the system, people who have refused to have anything to do with it, people who are undertaking the roles and people whose livelihood is at risk because of it. The vast majority of RIAI members work in small private practice – this EGM is a fantastic chance to have a say on equal terms with everyone else in the room. Tell the RIAI Council and Executive what you think about what is happening. Give the RIAI Council their mandate from members.

The EGM is about adopting a policy to vigorously ask the Minister to revoke SI.9, a law that the vast majority of RIAI members believe to be defective. Signatories have been in discussions with members of Council, the Steering Group, Change Group and other representatives of the RIAI in the build-up to the EGM: all agree SI.9 is simply not fit-for-purpose.

  • It is about no additional consumer protection- owners still seeking redress through the courts for defects with no guarantee of success.
  • It is about the Minister for the Environment confirming, in writing, that Assigned Certifiers are now responsible for Pyrite in an industry where no policing of quarries is undertaken by Local Authorities.
  • It is about public bodies essentially forcing Architects to take on the roles as part of public project appointments or else they don’t get the job.
  • It is about the CIF telling their members that assigned certifiers are now taking responsibility for the work of contractors.
  • It is about all other construction professionals undergoing rigorous registration procedures when contractors still remain unregistered.

There have and continue to be differences of opinion within the membership over how best to tackle SI.9 and bring about change. The new regulations have created massive changes on the profession. Debate is good- every organisation needs open and informed discussion to allow all positions to be aired, examined and tested against others.

This is your chance to voice your opinion or listen to those of others, and see what is happening. Not everyone will have had to serve a new commencement notice yet, so may not be aware of the implications. Others may be in the thick of it, struggling for fees and burdened with liabilities. Others may think there is no problem.

We fully support and reiterate recent appeals by the RIAI President Robin Mandal for unity in the profession.

This EGM resolution will unify the profession into one voice asking the Minister to take immediate action. Our profession needs to make the Government understand exactly how serious the implications of SI.9 are and how alternative systems are viable and practical.

We have a new Minister; let’s make him hear our voice.

If you want your say, be there next Tuesday. If you can’t make it, get someone who is going to make your point/table your query.

Thanks,

Barry Kelly

Previous EGM Posts:

Link to: RIAI EGM: Future BC(A)R Policy

Link to: Architects are Revolting – Revoke S.I.9