“Dangling Participles” and why all extensions may now require compliance with S.I.9: 2014

by Bregs Blog admin team

dangling_participle

The following opinion piece was submitted on 16th September 2014 by Nigel Redmond, a Registered Building Surveyor. It is a follow-up comment on a previous post “ALERT | Owners may need Certifiers on porch extensions?“. Concerns continue to be raised about possible ambiguities in the wording of S.I. 9 and their implications for floor area calculations. Varying interpretations have already arisen between different Building Control Authorities. The writer sought a determination on this issue from the BCMS and a BCA but without success to date.

Why all extensions may now require compliance with S.I.9: 2014

Here is a quote from page 5 of S.I.9: 2014

(2) The requirements of paragraph (1)(b) shall apply to the following works and buildings-

(b) an extension to a dwelling involving a total floor area greater than 40 square metres,

I wish to point out that part (b) lacks complete clarity and can be interpreted in two different ways and possibly three.  The issue is the word ‘involving’. It is a ‘dangling participle’.  A ‘dangling participle’ modifies the wrong noun.

I give two examples of this:

“I saw the trailer peeking through the window”.

Presumably, this means the speaker was peeking through the window, but the placement of the clause “peeking through the window” makes it sound as though the trailer were doing so. The sentence can be recast as, “Peeking through the window, I saw the trailer.”

Similarly, in “She left the room fuming”, it is possibly the room, rather than “she”, that was fuming. It may be preferable to write “Fuming, she left the room”, to avoid any ambiguity.

In the case of the aforementioned part (b), the participle ‘involving’ could refer to (a) the dwelling, (b) the extension, or (c) both together after construction and it is not immediately obvious that total floor area of 40 square metres refers to one in particular.

It is acknowledged that the most likely intention of S.I.9: 2014, was to refer ‘involving’ to the extension itself, however a simple comma would had make this legally absolute:

i.e. an extension to a dwelling, involving a total floor area greater than 40 square metres,

or better still

an extension, involving a total floor area greater than 40 square metres, to a dwelling.

Part (b) has left the subject implied and Assigned Certifiers are taking for granted they know what it means.  This has clearly occurred due to the word ‘involving’, and is caused by the poor writing strategy to this part of the statutory document.

S.I.9: 2014 stands on its own two feet and Assigned Certifiers cannot rely upon the Code of Practice for its LEGAL clarification.  Extraordinarily, part (b) has now wrote into Law, that if the dwelling is over 40 square metres, any extension constructed to it, regardless of the extension size, requires compliance with S.I.9: 2014.  This beggars belief.

It is also important to point out that the wording to this section changed when amending S.I.80, so there is nowhere to claim it was overlooked.  It is what it is.

Assigned Certifiers now must turn to their respective professional bodies for clarification on this matter as well as the BCMS and the Department of the Environment.  It must be pointed out there is no retrospective compliance for illegal developments. Therefore, until this matter is clarified, a view could be taken that it is inadvisable for professionals to issue Commencement Notices, supervise and certify any extensions constructed to a 40 square metre plus dwelling house after March 1st 2014.

This now throws any extension planned to a dwelling house into complete disarray until part (b) is legally amended. Amending part (b) would confirm that hundreds of extensions have indeed been constructed since March 1st 2014 illegally. However this clarification  can instead be avoided by abandoning S.I.9: 2014.

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While this interpretation may leave many Assigned Certifiers “dangling” until it is resolved we would like to hear the views of our readers on this item.

Other posts of interest:

ALERT | Owners may need Certifiers on porch extensions?

The € 500 million + cost of S.I.9 in 2014 | Residential Sector

SI.9 costs for a typical house

Fine Gael expert group opposed the introduction of new regulations

Bank of Ireland | Confusion over S.I.9 Building Regulations

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

The self build world has been thrown into disarray

Dispensations and Transition Arrangements

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