40 SqM SI.9 exemption update | 18 November 2014

by Bregs Blog admin team


For those that wish to catch up on the ongoing controversy surrounding the 40SqM exemption under BC(A)R SI.9 please find attached, in reverse chronological order, 12 selected posts from February 2014 to today. Key dates and events are shown in bold. It is remarkable that the industry still waits for a definitive interpretation of this most basic requirement of SI.9, 8 months post implementation. Early drafts of SI.9 (previously SI.80 ) did not contain this provision and are mentioned at the end.

  1. 12th November 2014: An opinion piece from a registered professional: Opinion | 40SqM BC(A)R SI.9 Extensions. Quote:”…there is only one reason in my opinion why this fiasco has occurred.  The definition of an extension has been up in the air for months now.  Our stakeholders & governmental departments have not listened nor have they addressed it.  This has left the interpretation of an extension to be worked out by amateur opinion for months & this has lead directly to where we are now.
  2. 7th November: the RIAI query is sent to DECLG re advice previously issued on 24th October: RIAI PRACTICE NEWS : 40SqM BC(A)R SI.9 Exemption. Quote “The RIAI had previously published, initially without comment,  the BCMS advice of the 24th October to the effect that the 40Sqm SI.9 exemption limit is cumulative (see post here). Following requests from members who cannot see how this can be case, the RIAI are now seeking clarification from the DECLG of this previous advice issued. We are not aware of any legal advice on the issue or other stakeholder interpretations at time of writing.”
  3. 6th November: a Registered Building Surveyor submitted an opinion piece: HOUSES + 40Sqm #BCAR. Quote “It appears that a Building Control Authority confirmed to the author yesterday that if one have used up the 40m2, any increase in floor area (internal) requires Long Form Commencement Notice (LFCN). This advice has also been confirmed and re-issued by the Royal Institute of the Architects of Ireland to members also…
  4. 2nd November: an opinion piece from Architectural Technologist: ± 40 sq.m. exemption from SI.9 | Kevin Tyrrell Architectural Technologist. Quote “And I believe that because Building Control Regulations relate and comment only to a single Permission then they can have nothing to say about the cumulative size of any extensions on the house. You could have a total of 300 sq metres of extensions to the house and they may as well not exist at all as far as the Building Control Regulations are concerned.
  5. 31st October: an opinion piece from a Registered architect: Commencement notice problems | Does size matter?. Quote “There must now be real  anxiety, that based on the proposed BCMS advice, that professionals, acting in good faith, and having read the S.I.9 legislation carefully, have submitted and had validated the wrong commencement notice – and by the implications of the BCMS advice, these people now have projects under construction illegally on site!
  6. 30th October: we noted commencement notice problems: Commencement Notice issues. Quote “On 12th May the RIAI issued an advice note* to members (see link here). On 19th May the RIAI issued a further advice note* to Practices  about Short Form Commencement Notices lodged between 1 March and 19 May 2014. This was contrary to the advice issued just one week earlier on 12 May…The RIAI Practice Advice* is evidence that for the first 11 weeks of S.I.9, Local Authorities issued and validated the wrong form for Short Form Commencement Notices (seemingly unaware that S.I.9 required them to be in the new format signed by the building owner). ” This related to previous post on this issue on July 15th (see below).
  7. 24th October: RIAI issue advice from BCMS on and include own more onerous interpretation on demolition: Legal Alert | Commencement Notices since 1st March 2014Quote: “Hundreds of homeowners have been left in a legal mess following new advice from the government run Building Control Management System (BCMS). The RIAI issued the new BCMS advice to their Practice members at around 5 pm on Friday of the Bank holiday weekend just gone and Building Surveyor, Nigel Redmond, received the advice from the BCMS yesterday, 27th October (Link:).  This is 8 months after the new rules were introduced and means that many domestic extensions started since 1 March 2014 may be illegal.      BCMS FAQ
  8. 19th September: letter from Ciaran Ferrie architect to Aidan O’Connor, DECLG. See pdf here: Letter_DoECLG_AOC_140919. Quote “Can you also confirm that this exemption applies to each individual extension separately i.e. there is no cumulative measurement of extensions as would be the case if you were assessing the project for exemption under Planning legislation. It would appear that some Building Control Authorities are interpreting this to include the measurement of any previous extension to the dwelling although there doesn’t seem to be any justification for this interpretation within the wording of S.I. 9:2014.
  9. 16th September: an opinion piece by Nigel Redmond: “Dangling Participles” and why all extensions may now require compliance with S.I.9: 2014. Quote “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…
  10. 8th September: BRegs blog post piece on confusion surrounding 40Sqm invalidations as alerted to by readers: ALERT | Owners may need Certifiers on porch extensions?. Quote: There are now serious concerns that the generally accepted application of the new regulations may be wrong. Perhaps it is a drafting error or perhaps the guidance did not spell it out, either way it looks as if it does not matter if you build under 40 m2  because every previous addition of floor area to the house may be cumulative! If this is the case, there are a number of very serious consequences…Many domestic projects may have gone on site (post March 2014) illegally without any appointment of Certifiers and there are no legal remedies…Works about to go on site may have to be held back to regularise their situations…Tiny projects (like a domestic porch) may need full appointments, inspection plans, multiple certificates and even- the family having to use the back door waiting for the completion certificate to be validated! Terraced home owners pay special heed to this one.
  11. 15th July: Bregs Blog post on illegal short-form commencement notices. See post CATCH 22 COMMENCEMENTS. Quote “We are now receiving reports from many parts of the country of these CATCH 22 COMMENCEMENTS- once you start building you cannot turn back the clock and start again so these illegal works can never be rectified. There is no provision for retrospective compliance under SI.9 (see post here)….This has very serious implications for all of the owners involved as they may have difficulty selling or financing these buildings in the future. More worryingly some owners have now been told to stop illegal building work by the local authority and they are currently caught in an impossible Catch 22 situation…Under the law, the only remedy is to demolish the part-completed building, lodge a new Commencement Notice and ‘start”
  12. 4th July: OPW commencement notice interactive tools issued at RIAI CPD event, circulated to members subsequently on 8th July: RIAI: OPW Interactive Tools for the Design Certifier. These were issued at RIAI CPD events and fully endorsed by both organisations. There is no mention of cumulative extensions or demolition issues. There are two download options: the Full Version (72MB) contains a repository of Legislation, Regulations and Guidance Documents, while the Lite Version (36 MB) has these elements removed.  Full Version – RIAI Interactive Process Diagram [incl Document Repository] Rev A (72Mb) Lite Version – RIAI Interactive Process Diagram Rev A(35.6Mb)

February 2014: We also include the early guidance documents issued by the DECLG as they inaccurately suggest 40 Sqm equals 400 SqFt. For DECLG Local Authority guidance note – extension of a dwelling by more than 40sqm (400 sqft) feb 21st 2014 see post Conflicting information from localgov.ie: BC(A)R SI.9.

2013: We also have the SI80  ‘drafting error’ which said extensions “no greater than 40 square metres” and had to be reissued as SI9 of 2014. For link click here. For pdf click: SI80 of 2013.

2012: Interesting that the public consultation in May of this year actually excluded domestic extensions. Quote:

The above additional information is required for new dwellings and for buildings/works for which a Fire Safety Certificate is required in accordance with Part III of the Building Control Regulations. In other cases the Commencement Notice form and the appropriate fee will suffice”

For PDF of the consultation document click Strengthening the system (incl RIA) 2012