Have our legislators left us a trail of destruction?
by Bregs Blog admin team
The following opinion piece was submitted by an architect to Breg blog on August 21st 2014. Originally a comment in response to our post A scenario that would leave thousands of homes ruined | Irish Examiner we have formatted it into an opinion piece.
Let me state at the outset that I am not a solicitor or barrister. I am a architect of 24 years standing.
- I qualified in 1990 and I have carried out inspections and issued Opinions, none of which have been challenged successfully in law (that I am aware of!).
- I have acted as an Expert Witness in District and High Court cases.
- I made a formal submission to the Minister in relation to the then foreseeable pitfalls in the current legislation and I have corresponded with Joe Miller, the Practice Director of the RIAI in relation to this matter.
Let’s just run through that example again:
“At first, they thought pyrite was causing the structural problems and the architect thought he would not be found liable as he had demanded certificates confirming the absence of pyrite. However it turned out the problem was the steel reinforcing bars used in the concrete. The architect hadn’t thought of seeking certification from the supplier and the judge found the architect had certified the building and was therefore responsible.”
This appears to partially mis-state the current situation as I understand it. Please allow me to clarify and I am happy to stand corrected on this: Pyrite Assumption.
Lets consider this as if Pyrite was the cause of the defect.
Under the current regulations, the Assigned Certifier would not be absolved from liability because he demanded certificates confirming the absence of Pyrite (assuming he received said certificates – that is not made clear above). That might have been useful as a defence under the previous regulations, but under the current regulations, that road to absolution is not available. Once you Certify, you are held liable criminally for all defects plus a myriad of minor offenses.
Under the current regulations, the Main Contractor is only obliged to build in accordance with the drawings and documentation received. Even if these documents stated clearly that any materials used in the building must be free from Pyrite, the criminal liability arising for the Assigned Certifier – once certification has occurred and the defect is found – appears to be absolute.
This is a materials issue, and the question arises as to who is expected to check every single item, material or component that arrives on site. Given the absolute nature of the criminal liability imposed on the Assigned Certifier, (implying that a defence of having asked for, received and verified certification for materials cannot be relied on) this means that every single item must be tested for certainty.
Testing of Materials:
Exhaustive testing of all materials and components coming to site is not included for in any building contract of which I am aware.
Samples of structural concrete are included for testing under most contracts, but only samples. Each structural element is not cored and tested to ensure that curing has allowed it to reach its design strength.
It is impossible to test for a defect in component manufacture where a defective element will test after 1,000 uses. It will fail when it fails. You cannot test every door lock or hinge or smoke or heat detector to destruction.
In most contracts, the work is expected to be signed off in a timely manner. This means there is no extended time period for latent defects to show up. To undertake rigorous and extensive testing and commissioning of all elements might double the project time. Who will pay for this level of perfection?
Let’s say testing took place but no defect arose at time of testing. This still is no defence. Once the defect arises, the liability kicks in, regardless of what tests took place.
[Blog note: comprehensive testing of materials does not occur in the speculative “build for sale” residential market]
Finding of Fact re Steel
The obligation on the supplier to fulfill his contract by following the well-notated drawings and specification does not mitigate the liability of the Assigned Certifier under the current regulations.
- Under the previous regulations the Main Contractor was obliged to build in accordance with the building regulations. The main contractor therefore would be the one purchasing and checking materials and making sure he was building compliantly before issuing his own Schedule A assurance in relation to the built work.
- Under the previous regulations, the defect being in the built work, the Main Contractor would be getting sued for the defects. The architect would be enjoined to the case because of the Opinion, but could rely on the Schedule A assurances from the Engineer and Main Contractor.
- Under the previous regulations, the supplier of the defective steel would be enjoined to the case and the certificates he offered in relation to supplying the steel in accordance with the specification could be relied upon by both the architect and the Main Contractor and the Court would apportion the liability.
In my opinion, under either previous or current regulations, architects should not be certifying structural design or built structural elements.
Good practice and under the previous regulations would have been to ensure the client engaged a structural engineer, and relied on the engineers Schedule A assurance. I see no reason to discontinue that under the current regulations, notwithstanding it is no comfort to the Assigned Certifier.
[Blog note: competency of certifiers and criteria for registers is unclear at present- this needs to be clarified by each professional stakeholder operating registers of competent professionals]
The conclusion under the scenarios I have describe above is no different than that in the letter to the newspaper. But it will not necessarily arise due to major defects under the building contract. In theory *any breach* of the regulations carries with it the threat of prison time and a hefty fine.
Architects seem to be focussed on the old conception of liability, which was based on dealing with defects in the built work.
My understanding is that draconian penalties can arise for a defect in the paperwork.
Would that our “legislators” were under a similar threat. They might think through the consequences of their new laws before heading off to Brussels looking for another pension to add to their collection, leaving the final destruction of the Irish Building industry in their wake.