When is an extension not extensions? | The 40M2 question…

by Bregs Blog admin team


Opinion Piece submitted by a registered architect: 26th November 2014.

DECLG trying to discover meanings in SI.9

We are currently in an unusual position. We have the Department of the Environment, Community and Local Government (DECLG) attempting to discover the meaning of basic components of legislation they introduced nine months ago. Even more remarkable is that this is as a result of a simple query coming from the Royal Institute of the Architects of Ireland, a key stakeholder group, whose own staff and selected Council members were involved in the drafting of the same legislation!

Normally technical queries on building control regulations  set most people, including professionals, to sleep. However this question concerns the most basic aspect of SI.9, introduced in March 2014.

The ordinary bystander or even the famed “man on the Clapham bus” might wonder where the fuss is, given the simplicity of the contested clause – Article 9(2) which  sets out the circumstances where the full provisions of SI.9 applies:-

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

 (a) the design and construction of a new dwelling,

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

Ergo, if you are building an extension to a dwelling involving a floor area of less than 40 square metres article 9(1)(b) shall not apply [the section dealing with Certificates of compliance etc]. This seems pretty straightforward. Well, in the unusual world of the DECLG and building regulations this is not necessarily the case!

It would appear that due to poor drafting, the regulations may actually permit multiple and possibly concurrent extensions of less than 40 square metres, as long as each has the appropriate planning permission. Indications from the DECLG, in correspondences to folk querying the matter, suggest that this was not what the drafters of the legislation intended.

It appears in their rush to get the legislation out to satisfy the then Minister, Phil Hogan, the DECLG may not have crossed their T’s properly or dotted their I’s, or even understood the basic workings of the English language.

This is not the first example of vague and poor wording in SI.9 legislation. Self-builders have already been told to effectively ignore the wording on the completion certificate requiring the signature of a principal or director of a building company, which of course, most self-builders are not!  The DECLG does not seem to be overly concerned for those who might follow its non-statutory advice.

We all know the Courts will not have any regard to what a civil servant or even a Minister has said. They apply law as written and not what people imagine it should have said.

In previous advice [dated 24th October 2014] the DECLG seemed to try to close this 40 square metres loophole. Through an information note issued, by both the BCMS and the RIAI, it was suggested that the Article 9(2) clause actually meant that any extensions completed cumulatively could not exceed 40 square metres without offering any evidence as to how this could be elicited from the clause as worded.

Due to widespread criticism of this advice the RIAI went back to the DECLG [on 7th November] and asked for confirmation of the official position. And there, for RIAI members at least, the trail goes cold. This process has taken over 10 weeks to date from the initial queries when this misinterpretation by Local Authorities became apparent in early September, so one thing for sure, the clarification will not be rushed. It is now over a month since the BCMS weighed in with their cumulative opinion, totally unsubstantiated by any reference to the legislation itself.

Remember this is Ireland, where an “extension” may be “many extensions” and your problems may be cumulative even without those in charge knowing. Imagine the reaction if it was claimed that in Civil Marriage legislation “spouse” was actually intended to mean “spouses”, so that we could become a rainy version of 19th century polygamous Utah?

Many owners and their agents who attended RIAI CPD’s [on 4th July] will have already submitted (and had validated) short form commencement notices confirming SI.9 does not apply, where the relevant works were less than 40 square metres (in accordance with advice at the time). They are building away or have completed these projects now happy in the knowledge (at the time) that they were exempt from SI.9.

If the DECLG confirm that there is a cumulative interpretation this means many owners will have commenced  extensions, with valid commencement notices, that are  officially illegal builds. No method for retrospective compliance (another flaw) means that to rectify the situation owners will need to demolish and rebuild. It is estimated that this may affect hundreds of house extension projects throughout Ireland and will have major conveyancing implications, to put it mildly, when properties come to be sold.

This is quite an embarrassing position for professionals to find themselves in after giving apparently incorrect advice on commencement (in retrospect).

If the DECLG come out and say that this is not the case, and no such interpretation of SI.9 involves cumulative areas, then it will be equally embarrassing, for the Department which has been shipping a lot of water over their performance in establishing the law setting up Irish Water. A gambling man would not bet the house (even one with a non-compliant extension) on the Department admitting to another mistake.

As a registered professional I have found this quite difficult to explain to clients- they simply do not believe me. Would a proper informed legal opinion on this be too much to ask for from the stakeholders?

Other posts of interest:

40 SqM SI.9 exemption update | 18 November 2014


Legal Alert | Commencement Notices since 1st March 2014 

ALERT | Owners may need Certifiers on porch extensions?

RIAI: OPW Interactive Tools for the Design Certifier