Attorney General asked if S.I.9 is in breach of Constitutional Rights
by Bregs Blog admin team
The following letter to the Attorney General Mairead Whelan (pictured) by a Chartered Surveyor was sent on 6th November 2014.
Attorney General Office
The Office of the Attorney General
To Whom It May Concern:
S.I. No. 9 of 2014 – Building Control Amended Regulations (SI.9)
A Planning Application, Fire Certificate, Disabled Access Certificate or a Dispensation Application can be submitted to a Building Control Department for consideration on their own merits. The decision of these applications, or conditions contained within these decisions, as issued by a Local Authority correctly open to appeal to An Bord Pleanala. This correctly represents an applicant’s statutory rights, administration rights, possibly the applicant’s constitutional rights & is likely to be consistent with European Law. After the Statutory 4 weeks to lodge an appeal to An Bord Pleanala has passed, the application is then determined. Only then can a Commencement Notice be issued for Validation.
I bring to the attention to the Attorney Generals office that S.I. No. 9 of 2014 which was introduced into the Building Control Act on March 1st 2014, moves away from this established, statutory & administration application procedure & sets a new unique validation procedure in place. SI.9 now merges a substantial set of drawings, certificates & documentation etc., together with a Commencement Notice for validation via an online Building Control Management System (BCMS). I emphasise that this submission can only be considered by means of a Validation process & not an Application process. The submission required is complex one & in many cases the information submitted for new notices will way exceed the information submitted within a typical Planning Application or a Fire Certificate Application. I bring to the attention of the Attorney General’s office that new notices for developments under SI.9, is clearly a building control application process cleverly & disingenuously disguised as a Commencement Notice validation process. There is simply way to much information to be submitted & scrutinised by a Local Authority to classify this as a validation procedure.
I bring to the attention to the Attorney Generals office that under this disingenuous validation system, An Bord Pleanala cannot in any circumstances consider ay appeal issues with matters relating to SI.9 as every part of it comes under the remit of ‘validation’ & not as an ‘application’.
- Any invalidation decision due to the opinion of BCMS or a Local Authority that inadequate information was submitted with the complex documentation that accompanied the Commencement Notice cannot in any circumstances be appealed to An Bord Pleanala.
- Any request of onerous information or decision by a Local Authority that the client believes is onerous, biased or detrimental to the build prior to the validation of a Commencement Notice or during the building process its self, cannot in any circumstances be appealed to An Bord Pleanala.
- No Determinations Appeals process to An Bord Pleanala is set in place whatsoever.
- Should the Local Authority refuse to validate a final completion due to the opinion that inadequate information accompanied the Certificate of Compliance, which inurn proves detrimental to the client, or in the opinion of the client is incorrect, biased or onerous, this cannot be appealed to An Bord Pleanala.
I bring to the Attorney Generals office attention that today we have now a situation where the Building Control Department are free to request any additional information they see fit at validation, during the build or at the completion stage. The principal of this self seems on the face of things fine, however as there is no appeal option permitted within SI.9 to An Bord Pleanala, the system is now wide open for bias, onerous requests & currently allows incorrect decisions to be made unchallenged to the Bord. Under SI.9, any Building Control Department can act as judge & jury & are akin to a Kangaroo Court, bar challenges made through an expensive & in many cases a highly stressful Judicial Review process. A building owner is clearly under duress to consent to any Local Authority requests, as bar a very expensive Judicial Review process, there is no other alternative opinion to seek an independent opinion. This therefore is a clear breach of the legitimate expectations, statutory & administration rights of the Irish public & I ask the Attorney Generals office to take the appropriate measures that is within its remit to comprehensively address this.
To uphold statutory & administration rights of the Irish Public Building Control, ‘approval’ must occur through a clear unambiguous application process & not through a validation process. A submission of an application form, specifications, documentation, drawings etc., should be lodged to the appropriate Local Authority under an official application for the granting with conditions or refusal. The Building Control Department must decide an application on its own merits over a statutory period & if successful, the applicant/building owner must wait a statutory appeal period between the decision to grant Building Control Approval & submitting a Commencement Notice for validation. If the application is refused, the applicant must have a right to appeal. A statutory Determination Appeals process must also be introduced into SI 9.
When the application process is completed, then only then, should a Commencement Notice be submitted to the BCMS system for its validation. This can continue to occur via the existing on line BCMS system that currently validates Commencement Notices.
I bring to the attention to the Attorney Generals office, that I do not know of any newly established Building Control system within Europe where the initial application for Building Control ‘approval’ & subsequent decision by a Building Control Department is not open to an independent appeal process such as An Bord Pleanala. I am struggling to find anywhere in Europe where there is a 4-week statutory appeals process for some parts of the Building Regulations (e.g. Fire Cert or a Disabled Access Cert) & not for others. This is a unique situation. Legally this will remain this case until the Commencement Notice & accompanying documentation submitted to BCMS are made independent of each other. I ask the Attorney Generals office to take the appropriate measures that is within the remit of its office to address this.
Our Building Control process is governed both by statutory requirements and the principles of natural justice and fair procedures under administrative law. I therefore formally ask the Attorneys Generals office to take the necessary measures within its remit to respond to the following questions.
- Has SI.9, compiled or breached the legitimate expectations of the Building Control Act?
- Has SI.9, compiled or breached statutory requirements, fair procedure rights or administration rights of the Irish Public?
- Is SI.9 in keeping with Irish & European Law?
- Has SI.9 provided disproportionate decision-making powers to a Building Control Authority or Building Control Officer?
- Are there adequate procedures within the Building Control Act to facilitate challenges of bias by a Building Control Department on matters relating to SI.9, or is the only avenue to challenge bias through legal Judicial Review?
- As there is no Appeals possibility to An Bord Pleanala is the Attorney Generals office satisfied that the procedures under SI.9 will not place a building owner under duress to consent to any Local Authority requests, as bar a very expensive Judicial Review process, there is no other alternative opinion to seek a second opinion?
- To uphold statutory & administration rights of the Irish Public Building Control can the Attorney General’s office confirm that that Building Control ‘approval’ should occur through a clear unambiguous application process & not a validation process?
Finally, should any of my concerns prove to be founded & correct, where appropriate I formally request that the Attorney Generals office take the appropriate measures it sees fit to comprehensively address them with the DECLG or relevant department.
I thank you for taking the time to address the matters raised within this letter.
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