± 40 sq.m. | “Exemption should avoid controls on minor development”

by Bregs Blog admin team

What Date

5th December 2014

SI.9 and the 40 m2 question | What date did you have in mind?

Many weeks have elapsed, without clarification being issued by any of the stakeholder groups or the Department of the Environment with regard to the contentious issue of “when is an extension not an extensions” and when does the 40+ m2 rule apply?

If one reads the ‘Twilight Zone’ post (Link:) one could assume, rightly or wrongly, that the Building Control Authorities (if they have not got their own legal advice to the contrary) will be applying the interpretation given in FQA 21(b) on the BCMS website in relation to floor areas of extensions and SI.9. This seems to be a fundamental misunderstanding of the Building Control Regulations which should be focused on the degree of complexity of individual building projects and the requirement for input by the Building Control Authority and not on a cumulative assessment of their size which is more relevant to Planning and Development legislation to avoid un-managed over development.

The purpose of exemptions should be to avoid controls on development of a minor nature. Imagine some of the domestic projects that will now require the appointment of Design and Assigned Certifiers, and the full submission of compliance documents, undertakings, drawings, details, Inspection Plans and to await the issue of a Certificate of Compliance on Completion before occupation is possible. These could include:

  • The obvious one: – where someone adds an extension greater than 40 m2, which would require planning permission. So far, so good!
  • Where an existing house has been previously extended by 40m2, and the exempted development allowance provided for planning is exhausted, and thereby requiring planning consent, any further extension – whether 2 m2 in size (a bay window that required planning permission  to the front for example!) or 200 m2 in size . Yes, that’s right – an Assigned Certifier may be required for a bay-window. Munster Joinery, Senator and Global Home Windows will soon be fielding requests for ancillary certificates from Assigned Certifiers!
  • Where an existing house has been previously extended by 2 m2 and a further extension is proposed with an area greater than 38 m2.

The BCMS advice talks in general about a “legally permitted area”, without detailing where this is defined in legislation. This, in itself, is problematic. How is it defined? In planning terms, at least, one can talk about the area for which planning has been granted, and make allowances for the extra area over allowed for exempted developments. That is to say, in the case of:

  • A property built after ‘the appointed date’ i.e. 1st October 1964, the area for which planning was granted, and any further exempted development construction as permitted at the time the exempted development was constructed, and any subsequent construction for which planning was granted. There may be other areas such as attic conversions and garage conversions to be considered, on a case by case basis.
  • In a property built prior to ‘the appointed date’ i.e. 1st October 1964, the area which was determined and agreed extant before ‘the appointed date’, and any further exempted development construction as permitted at the time the exempted development was constructed, and any subsequent construction for which planning was granted. There may again be other areas such as attic conversions and garage conversions to be considered, on a case by case basis.

But are we not talking about the Building Control Regulations, which came into force after 1st June 1992? How can a Statutory Instrument remotely infer that a “legally permitted area” relative to Planning and Development Acts has any role in legislation for Building Control Regulations, most particularly when the legislation itself is silent on the matter?

Is it the case that the legally permitted area for Building Control Regulations is determined from the commencement of Building Regulations? Unworkable as it seems, could this be the case? Or is it from the introduction of the Building Control (Amendment) Regulations i.e. 1st March 2014?

How will Building Control Authorities, in assessing Commencement Notices for extensions, satisfy themselves that there have not been additional extensions and from what date should this be measured? Will there be a requirement for a Statutory Declaration to that effect by the applicant? Should the commencement notice form allow for this?

What if a person designs a 42m2 extension and submits a Commencement Notice with full SI.9 documentation and during construction, a minor alteration which would not be problematic with planning causes the extension to reduce to 39m2 – how is this to be resolved? Such minor changes would rarely be considered non-compliant with planning – but with SI.9, who now knows?

The blunt clarity of the completion certificates in SI.9 exclude any possibility of the de minimus rule applying – everything is either right – and failing that – the building does not comply. There is no provision to make any qualifications.

Finally, because it is an either/or situation with the choice of commencement process to follow, if the wrong one is submitted, and this is found out later, the wording of SI.9 is very clear – a  legally valid commencement notice is not in place for the development – there is no means of remedying this – what next?

We can imagine the joy and delight in hard pressed Building Control Authority offices up and down the country, as they pore over the BER and compliance documents for a small porch on a house that used its exempted development allowances in the past, while trying to obtain further resources from central Government to deal with the far larger risks associated with bigger developments and public buildings.

It would be so much simpler if  the wording in the SI.9, saying each extension may be up to 40m2 before a Commencement Notice with full SI.9 documentation is required, was accepted by the BCMS. We hope commonsense will prevail and that the stakeholders or DECLG will issue the clarifications being sought by them from their legal advisers soon.

Useful Links:

When is an Extension not an Extensions? | The 40m2 Question: 

40 SqM SI.9 exemption update | 18 November 2014

RIAI PRACTICE NEWS : 40SqM BC(A)R SI.9 Exemption

Legal Alert | Commencement Notices since 1st March 2014 

ALERT | Owners may need Certifiers on porch extensions?

RIAI: OPW Interactive Tools for the Design Certifier 

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