Collins & O’Cofaigh | “the 38 steps” and the complexity of our regulations

by Bregs Blog admin team

Lean Thinker

By BRegs Blog Admin. Team on 3rd October 2014

The following submission by two RIAI Past Presidents, Michael Collins and Eoin O’Cofaigh, is part of a ‘change paper’ currently being developed to propose a workable alternative system of independent building control inspections for an RIAI EGM in November. In this paper the extent of current legislation and regulation that currently applies to construction is catalogued. Recent consolidated Senior Council opinions suggest that five separate eminent Senior Counsels are unable to agree on a common interpretation of S.I.9 given the complexity of the current legislation. Quote from the paper:

That a private householder might have to bring a 500 sq. foot house extension through 27 statutory steps before occupying it; or, that an FDI project takes 38 steps likewise?

It makes for a suitable companion piece to our post earlier today when Dr. Ronan Lyons commented upon the urgent need to review the complexity, cost and consumer benefit of our construction regulations. The system should be streamlined and simplified to aid in a construction recovery with the cost/benefits to the consumer assessed. The UK is currently looking at simplifying their systems – applying the principles of ‘Lean Construction’. To quote the UK government Red Tape Challenge:

The housing and construction industries are key to driving growth in our economy. Through smarter regulation, we can remove barriers to growth and encourage investment, choice and innovation“. Read more here.

The answer to a problem where there was inadequate enforcement, is not more regulation. It’s more enforcement.

More paper does not make better buildings“.

Pdf download of paper here: 140514 Better System V2


RIAI:- BC(A)R Change Group


14 May 2014

This paper is a shortened version of a paper  given at the RIAI “Better Systems” Workshop, 22 May 2014

Michael Collins, Eoin O Cofaigh

1 Context

Since the Local Government Planning and Development) Act 1963 came into force, statutory control of building design and construction has progressively intensified and become more complex. What started as one Act and one Statutory Instrument (280 pages) has grown into legislation on:-

  • Planning (1963) including development control;
  • Building control (which started in 1991);
  • Safety, health and welfare at work (which started in 1988);
  • Environmental protection;
  • EC/EU directive transpositions;
  • Building energy rating;
  • Multi-Unit Development Act;
  • Fire Services Act (1981); and
  • Environmental health.

At this time there are perhaps 13 separate Acts and 110 Statutory Instruments in force which regulate construction design and realization (footnote 1). These originate in four government departments who communicate little on these issues. These are staggering figures. Nowhere can this legislation be found grouped in one place. Nobody, especially not the legislator, has a grasp of the entire. But the problem devolves on the architect, who has to implement the legislation and protect their clients.

“If we were designing a system, we wouldn’t design it the way it’s turned out!” is wrong. There is no system.

Buildings have become more complex and some projects have grown larger. The legislation must respond. However, legislation impacts on the smallest, simplest job. The problem has been growing for 50 years. Controversies over BC(A)R are only its most severe manifestation to date.

The impact of ever-more complex legislation on Ireland’s international competitiveness is increasingly clear. Recent UK policy on lowering corporate taxation is now being paralleled by British Government decisions to simplify their planning and building law.

From the largest, most complex project to the smallest and simplest, Irish regulation of building design and construction is in increasingly urgent need of radical overhaul.

The difficulties in implementing the 2014 building control regulations (S.I.9) are already manifesting themselves on lowered Commencement Notice numbers. The poor international rating of the efficiency of the regulatory system (reference: World Bank reports), together with the expectation that amendments to the Building Control and Planning Acts will be proposed in the near future, and the BCR review promised by the Minister for the Environment, Community and Local Government, all taken together, both demonstrate the need and the opportunity to review the entire.

Such a review, with independent inspection of building design and construction, could streamline the entire process to the advantage of the State and industry; give the house buyer better protection; solve the self-builder conundrum; and promote construction sector growth and employment from the shopping unit fit-out (now made practically speaking, impossible) to the FDI project. A system of independent inspection under building regulations should form part of a simplified system. Think if architects and engineers were helped to understand the planning regulations! Given the 50 statutory instruments currently in force, this is more easily said than done…

There will be many allies in this process. These include:-

IDA Ireland;

The National Competitiveness Council;

The Competition Authority;

The representative bodies for building control officer and fire protection officers;

Representative organizations for self-builders, architectural technologists and others currently excluded from the S.I. 9 self-certification process; and more.


The building owner must take or cause to have taken on his behalf, the following steps to realize a project. The few of the following steps which are not statutory are marked * but are in reality unavoidable in the “system” as it has evolved in Ireland. Other building types have their own sets of requirements.

45 sq m domestic house extension 10,000 sq m FDI shell industrial facility
1 * Consult development plan. Site development standards, overlooking, protected structures, * Consult development plan. Zoning, site development standards, overlooking, protected structures, transportation policy, areas of scientific interest etc..,Special Development Zone regulations apply?
2 Initial consultation with planning authority, sanitary authority, re zoning, transportation, environmental impact, protected landscapes, drainage etc..
3 Consult FPO re standards, mains water for fire fighting.
4 Pre-planning consultations with transportation, sanitation engineers, Irish Water, even if consultations do not bind
5 * The adversarial nature of the process makes consultation with adjoining owners desirable consultation with adjoining owners desirable
* Consultation essential with adjoining owners, environmental groups
6 Planning application, 16 page form, site notice, public notice, design statement, 3-D visualisations, energy calculations etc Planning application, 16 page form, site notices, public notice, design statement, detail drawings, engineering layouts, 3-D visualisations, energy calculations etc
7 Engage consultants including specialists, prepare, coordinate and submit EIA and report – transportation, fauna, flora, heritage, drainage, water, energy
8 Respond to RFI requests Respond to RFI requests
9 Respond to third party appeals Respond to third party appeals
10 Meet L.A. engineers re post-compliance submissions
11 Perhaps post-permission submissions Lodge post-permission planning compliance submissions. Usually mobility plan, landscaping, drainage, roads, parking, façade, gates, boundaries…
12 Apply for Fire Safety Certificate
13 Obtain approval post-permission planning submissions
14 Apply for Disability Access Certificate
15 Determine safety competency of person to be appointed as PSDP Determine safety competency of person to be appointed as PSDP
16 Tax clearance cert for chosen builder to avail of tax relief
17 Appoint PSDP Appoint PSDP
18 Preliminary Safety and Health Plan Preliminary Safety and Health Plan, to include preparation of and co-ordination of risk assessments and, most likely, Site Limitations drawing and schedules
19 Determine building regulations competency of appointees Determine building regulations competency of BCAR Certifier appointees
20 Appoint Design Certifier Appoint Design Certifier
21 Appoint Assigned Certifier Appoint Assigned Certifier
22 Prepare Preliminary Inspection Plan and submit to BCA Prepare Preliminary Inspection Plan in conjunction with consultants and submit to BCA
23 Appoint competent builder Appoint competent builder
24 Commission DEAP calculations for Part L Commission DEAP calculations for Part L
25 Commission Building Energy Rating and systems reports
26 Obtain Fire Safety certificate
27 Obtain Disability Access certificate
28 Notify HSA before starting Notify HSA before starting
29 Notify BCA of appointments Notify BCA of appointments
30 Serve Commencement Notice on BCA Serve Commencement Notice on BCA
31 Serve Commencement Notice on HSA
32 Serve design drawings, calculations, inspection plan on BCA Serve design drawings, calculations, inspection plan on BCA
33 Serve developed Inspection Plan on BCA Serve developed Inspection Plan on BCA
34 Obtain and serve revised drawings, specifications, test certificates etc on BCA Obtain and serve revised drawings, specifications, test certificates etc on BCA
35 Serve Completion Certificate on BCA Serve Completion Certificate on BCA
36 BCA to validate submissions BCA to validate submissions
37 (Open, occupy and use building) (Open, occupy and use building)
38 Payment details to Revenue re tax relief
39 Keep safety file for future reference Keep safety file for future reference

Which is worse? That a private householder might have to bring a 500 sq foot house extension must through 27 statutory steps occupying it; or, that an FDI project takes 38 steps likewise? Whether for social or for economic reasons, the mass of legislation urgently needs overhaul and simplification.

Simplification should not be about lowering standards. It’s about better understanding what’s needed, and about spending less time and intellectual energy to deliver it.

3 Where to start?

With building control and building regulations. These present the most acute difficulties, and the Minister for the Environment has promised a review. Several groups (“self-builders” and architectural technologists) have been affected gravely by the BC(A)R 2014. More importantly, it is now emerging that the slow-down in construction Commencement Notices is being caused by the BC(A)R process. A review is needed urgently. With cooperation all round, this can turn into a “win-win” for Minister, consumer, FDI, SMEs and the construction sector alike.

The opportunity presented by the need for consideration of a revised set of Building Control (Amendment) Regulations to replace S.I. 9 of 2014 should be grasped, and a case now made for a comprehensive set of measures to deliver a more effective and streamlined building control system, coordinated where possible with other legislation that regulates the industry.

4 The case to be put

  • The legislative and procedural mess with which the State confronts promoters of building projects and their professional advisors;
  • The slowly and, lately, rapidly increasing complexity of the procedures, for projects large or small, per Section 2;
  • The lack of any co-ordination between the multiplicity of similar and overlapping requirements of the Building Control Act; Planning Act; Multi-Unit Development Act; Safety, Health and Welfare at Work Act; Fire Services Act; Construction Products Directive; Environmental Health Acts; and Environment legislation has resulted in a multiplicity of different forms and procedures with different timescales and sequences.
  • The inappropriateness of a single set of procedures to all projects from a house extension to a major infrastructural project, with no analysis of the risks or benefits.
  • The poor levels of competitiveness of the Irish building control system as ranked in recent World Bank report and confirmed by the National Council on Competitiveness.
  • Government moves in other jurisdictions, most immediately in the UK, to a simplified unified system. This will widen the gap in Ireland’s poor position in world rankings.
  • RIAI Council policy in relation to BC(A)R 2014, unanimously agreed in January 2014 that self-certification does not properly protect the consumer.
  • Implementation plan for EU energy/ sustainability targets (2020 nearly-zero-energy for all new buildings). This is not achievable without independent inspections and enforcement and it is mandatory at EU level. The new Climate Bill will also include construction and there will be a requirement for annual reporting nationally.
  • Implementation of the Construction Products Directive. This changes Part D; and a national system of record-keeping, market surveillance and ‘alert’ system is needed.
  • Each Building Control Authority is currently required by law to provide a schedule of approved materials for the industry. This is also mandatory at EU level.
  • The benefits to the national economy from streamlined systems.
  • The need to re-establish fair, sustainable levels of liability and remuneration for all stakeholders with cost effective systems of redress in cases of defective buildings.
  • A simpler system can give better protection to the consumer.

5 Principles which should underlie such a system

  • Streamlining Building Control. A reformed system should be simpler than the present one, combining into a single process the procedures such as Fire Safety Certificates and Disability Access Certificates; and integrated to the maximum extent possible with other relevant legislation such as planning, and products regulations.
  • The exemptions/ classes of use/ administration could change over time to align with Planning, and Health & Safety. A new Planning Act is to be published this year. This gives an opportunity to start the process. This could follow through with H&S notices, site record keeping etc., to remove duplication.
  • Streamlining inspections. At present, there are site inspections from HSA (site safety), Revenue (tax compliance), BCA (building regulations and now construction products), Environmental Health, Roads/Drains and more. The opportunities to reduce duplication and make efficiencies must be grasped.
  • Local authority control. Building control authorities should be clearly in overall charge of the process with the powers and resources to carry out the task effectively.
  • Cost and Liability: The State should must retain overall control of and responsibility the system, but industry should in the first instance be responsible for the cost of the system and for defects in construction.
  • Enforcement. Powers of enforcement should be strengthened where there are gaps and Building Control Authorities must be prepared to use them to act as an effective deterrent in appropriate circumstances.
  • Risk. The system should be sufficiently flexible to reflect the risk and scale and nature of the projects that it seeks to regulate. 24 people died in residential fires in 2013. Nobody died in a fire in any other building type. The system should re-focus on such problems. Recent requirements on carbon monoxide alarms are sensible; but when did a building control authority conduct an area-wide walk-past inspection of escape facilities through new bedroom windows?
  • Flexibility. The system should accommodate fluctuations in the scale and nature of construction sector activity, and make best use of public and private sector  resources.
  • Speculative housing. Given the experiences of recent years and its social importance, the system should pay proportionately greater attention to this sector.
  • Non-residential construction. Given the lack of problems in this sector, consideration should be given to lightening the regulatory burden on businesses.
  • Fostering technical innovation. The system should encourage innovation, particularly in a context where zero-carbon housing is a target only six years off.
  • Maintaining Standards:  Systems of monitoring and feedback to the industry are a vital element in raising and maintaining standards of design, and construction.
  • Dispute Resolution: There is need for efficient systems of dispute resolution.
  • Quality of construction materials. The CE mark does not cover all widely-used construction materials. The system needs to ensure quality of all materials and compliance with CE mark which is integrated into the overall building control system. 
  • Latent Defects Insurance. LDI is the most effective way of protecting consumers. A properly formulated system should be compulsory in the speculative residential sector.
  • Simplicity in technical guidance. In 1991 the TGD’s totalled 340 pages. In 2014 they total 1000. The desire for comprehensiveness is affecting clarity. This can include structure, programme for updates, removing inappropriate/ out of date references, internal contradictions etc. This will take time but could actively remove some of the claims in the grey areas. All standards should be ‘measurable’ if they are to be certified.
  • BRAB (or some equivalent) should be re-appointed with an enhanced role in the review of the overall system.

1. In 2000 and 2001, after three years’ solid work, the then Minister for the Environment, Noel Dempsey TD, secured a consolidated and updated Planning and Development Act and Regulations. That was a huge and worthwhile undertaking.

Since then, there have been 3 further Planning Acts and 56 sets of Planning Regulations.

Since the last major update of the building regulations and the building control regulations in 1997, there have been 31 additional sets of regulations and 1 additional Act.


Sector Comment
(General) It is possible that some of the Instruments have been repealed. It is beyond the scope of this paper to examine the legislation on a piece-by-piece basis.Some (not all) Commencement Orders are listed, as it can otherwise be unclear which potions of Acts are in force.
Planning and Development No consolidated list is available from the Department of the Environment. The following is taken from the Irish Statute book.Instruments relating to appointment of members of An Bord Pleanála have not been listed.
Building Regulations and Building Control Regulations The DoECLG website lists some Statutory Instruments which have been revoked. Those are not included below.S.I.s relating to the Building Regulations Advisory Body, which has not met for some years, is not listed.
Building Energy Rating To the DoECLG website list should be added the 2012 regulations and those revoked in 2012 should be removed.
Safety and health re: construction The list does not include legislation on specialist areas such as quarries or asbestos exposure.
Planning and Development
1 S.I. No. 219/2013 – Planning and Development (Amendment) Regulations 2013.
2 S.I. No. 403/2013 – European Union (Environmental Impact Assessment and Habitats) (Section 181 of the Planning and Development Act 2000) Regulations 2013.
3 S.I. No. 520/2013 – Planning and Development (Amendment) (No. 2) Regulations 2013.
4 S.I. No. 116/2012 — Planning and Development (Amendment) Regulations 2012.
5 S.I. No. 419/2012 — European Union (Environmental Impact Assessment) (Planning and Development Act, 2000) Regulations 2012.
6 S.I. No. 530/2012 — Planning and Development Act 2000 (Designation of Strategic Development Zone: North Lotts and Grand Canal Dock) Order 2012.
7 S.I. No. 132/2011 — Planning and Devt (Amendment) Act 2010 (Commencement) Order 2011.
8 S.I. No. 201/2011 — Planning and Development (Strategic Environmental Assessment) (Amendment) Regulations 2011.
9 S.I. No. 243/2011 — Planning and Devt Act 2000 (SDZ) (Amendment) Order 2011.
10 S.I. No. 262/2011 — Planning and Development (Amendment) Regulations 2011.
11 S.I. No. 454/2011 — Planning and Development (Amendment) (No. 2) Regulations 2011.
12 S.I. No. 464/2011 — European Communities (Amendment to Planning And Development Regulations) Regulations 2011.
13 S.I. No. 475/2011 — Planning (Amendment) Act 2010 (Commencement) (No. 2) Order 2011.
14 S.I. No. 476/2011 — Planning and Development (Amendment) (No. 3) Regulations 2011.
15 S.I. No. 582/2011 — Planning (Amendment) Act 2010 (Commencement) (No. 3) Order 2011.
16 S.I. No. 405/2010 — Planning (Amendment) Act 2010 (Commencement) Order 2010.
17 S.I. No. 406/2010 — Planning and Development Regulations 2010.
18 S.I. No. 451/2010 — Planning (Amendment) Act 2010 (Commencement) (No. 2) Order 2010.
19 S.I. No. 477/2010 — Planning (Amendment) Act 2010 (Commencement) (No. 3) Order 2010.
20 S.I. No. 535/2010 — Planning and Development Act 2000 (Strategic Development Zone: Cherrywood, Dún Laoghaire-Rathdown County) Order 2010.
21 S.I. No. 540/2010 — Planning and Development Act 2000 (Strategic Dev Zone) (No.2) Order 2010.
22 S.I. No. 678/2010 — Planning and Development Act 2000 (Strategic Devt Zone) Order 2010.
23 Planning and Development (Amendment) Act 2010
24 S.I. No. 100/2009 — Planning and Development (Regional Planning Guidelines) Regulations 2009
25 S.I. No. 574/2009 — Dublin Transport Authority Act 2008 (Amendments of Planning and Development Act 2000) (Commencement) Order 2009
26 S.I. No. 235/2008 — Planning and Development Regulations 2008.
27 S.I. No. 256/2008 — Planning and Development (Amendment) Regulations 2008
28 S.I. No. 83/2007 — Planning and Development Regulations 2007.
29 S.I. No. 135/2007 — Planning and Development (No. 2) Regulations 2007.
30 S.I. No. 297/2007 — Dublin Docklands Development Authority Act 1997 (Section 25 Planning Scheme) Order 2007
31 S.I. No. 442/2006 — Planning and Development Act 2000 (Designation of Strategic Development Zone: Balgaddy-Clonburris, South Dublin County) Order 2006
32 S.I. No. 525/2006 — Planning and Development (Strategic Infrastructure) Act 2006 (Commencement) Order 2006
33 Planning and Development (Strategic Infrastructure) Act 2006
34 S.I. No. 364/2005 — Planning and Development Regulations 2005
35 S.I. No. 152/2004 — Planning and Development Act 2000 (Commencement) Order 2004
36 S.I. No. 436/2004 — Planning and Development (Strategic Environmental Assessment) Regs 2004
37 S.I. No. 813/2004 — Rules of the Superior Courts (Planning and Development Act, 2000), 2004
38 S.I. No. 90/2003 — Planning and Development Regulations 2003
39 S.I. No. 175/2003 — Planning and Development (Regional Planning Guidelines) Regulations 2003
40 S.I. No. 450/2003 — Planning and Development Act, 2000 (Commencement) Order, 2003
41 S.I. No. 70/2002 — Planning and Development Regulations 2002
42 S.I. No. 149/2002 — Planning and Development (No. 2) Regulations 2002
43 Planning and Development (Amendment) Act, 2002
44 S.I. No. 135/2007 — Planning and Development (No. 2) Regulations 2007.
45 S.I. No. 153/2001 — Planning and Development Act, 2000 (Commencement) Order, 2001
46 S.I. No. 138/2012 — Building Regulations (Part A Amendment) Regulations 2012.S.I. No. 272/2001 — Planning and Development Act, 2000
47 S.I. No. 273/2001 — Planning and Development Act, 2000 (Designation of Strategic Development Zone – Hansfield, Blanchardstown) Order, 2001.
48 S.I. No. 274/2001 — Planning and Development Act, 2000 (Designation of Strategic Development Zone – Clonmagadden Valley, Navan) Order, 2001.
50 S.I. No. 525/2001 — Local Government (Planning and Development) (Fees) Regulations, 2001.
51 S.I. No. 539/2001 — Local Government (Planning and Development) (Amendment) Regs, 2001.
52 S.I. No. 599/2001 — Planning and Development Act, 2000 (Commencement) (No. 3) Order, 2001
53 S.I. No. 600/2001 — Planning and Development Regulations, 2001
54 Planning and Development Act, 2000
Building Control
55 SI 180 of 2014 Building Regulations (Part K Amendment) Regulations 2014 (pdf, 109kb)
56 S.I. No. 9/2014 – Building Control (Amendment) Regulations 2014.
57 S.I. No. 105/2014 – Building Control (Amendment) (No. 2) Regulations 2014.
58 S.I. No. 133/2014 – Building Regulations (Part J Amendment) Regulations 2014.
59 S.I. No. 284/2002 — Building Regulations (Amendment) Regulations 2002
60 S.I. No. 138/2012 — Building Regulations (Part A Amendment) Regulations 2012.
61 S.I. No. 259/2011 — Building Regulations (Part L Amendment) Regulations 2011.
62 S.I. No. 513/2010 — Building Regulations (Part M Amendment) Regulations 2010.
63 S.I. No. 561/2010 — Building Regulations (Part H Amendment) Regulations 2010.
64 S.I. No. 351/2009 — Building Control (Amendment) Regulations 2009
65 S.I. No. 556/2009 — Building Regulations (Part F Amendment) Regulations 2009
66 S.I. No. 259/2008 — Building Regulations (Part L Amendment) Regulations 2008
67 S.I. No. 335/2008 — Building Regulations (Part G Amendment) Regulations 2008.
67 S.I. No. 854/2007 — Building Regulations (Amendment) Regulations 2007
68 Building ControlAct 2007
69 S.I. No. 115/2006 — Building Regulations (Amendment) Regulations 2006
70 S.I. No. 873/2005 — Building Regulations (Amendment) Regulations 2005
71 S.I. No. 85/2004 — Building Control (Amendment) Regulations 2004
72 S.I. No. 284/2002 — Building Regulations (Amendment) Regulations 2002
73 S.I. No. 284/2002 — Building Regulations (Amendment) Regulations 2002
74 S.I. No. 581/2002 — Building Regulations (Amendment) (No.2) Regulations 2002
75 S.I. No. 10/2000 — Building Control (Amendment) Regulations, 2000.
76 S.I. No. 179/2000 — Building Regulations (Amendment) Regulations, 2000
77 S.I. No. 249/2000 — Building Regulations (Amendment) (No. 2) Regulations, 2000
78 S.I. No. 441 of 2000 (Class 9 exemption extension)
79 S.I. No. 496/1997 — Building Control Regulations, 1997.
80 S.I. No. 497/1997 — Building Regulations, 1997.
Building Energy Rating
81 S.I. No. 243/2012 — European Union (Energy Performance of Buildings) Regulations 2012.
82 SI 872 of 2005 (European Communities (Energy Performance of Buildings Regulations)
Fire safety in buildings and as AFFECT alteration projects
83 S.I. No. 319/1989 — Fire Services Act, 1981 (Prescribed Premises) Regulations, 1989.
84 S.I. No. 249/1985 — Fire Safety in Places of Assembly (Ease of Escape), Regulations, 1985.
85 S.I. No. 430/1981 — Fire Services Act, 1981 (Commencement) Order, 1981.
86 Fire Services Act, 1981
Safety, health and welfare at work as APPLY to building JOBS
87 S.I. No. 291/2013 – Safety, Health and Welfare at Work (Construction) Regulations 2013.
88 S.I. No. 299/2007 — Safety, Health and Welfare at Work (General Application) Regulations 2007
89 S.I. No. 318/2006 — Safety, Health and Welfare at Work (Work at Height) Regulations 2006
Multi-unit developments
91 S.I. No. 95/2011 — Multi-Unit Developments Act 2011 (Commencement) Order 2011.
92 S.I. No. 96/2011 — Multi-Unit Developments Act 2011 (S. 3) (Prescribed Persons) Regs 2011.
93 S.I. No. 112/2011 — Multi-Unit Developments Act 2011 (S. 27) (Prescribed Bodies) Order 2011.
94 Multi-Unit Developments Act 2011
Not scheduled: Environmental protection
++ Governs requirements for Environmental Impact Assessment and EI Statements
Not scheduled: Environmental Health
++ Governs design of premises such as restaurants and kitchens

Other posts of interest:

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

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

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

Architect’s Overview of Regulations for a Dwelling

BC(A)R SI.9 + Construction Product Regulations 2013

How do we fix BC(A)R SI.9? 

SI.9 costs for a typical house 

SI.9 to Cost €168m in 2014 | Non-Residential Sector

SI.9 to Cost €532m in 2014 | Residential Sector 

The extraordinary cost of BC(A)R SI.9 of 2014

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