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. 

Advertisements