BRegs Blog

A blog to debate the Building Control (Amendment) Regulations (BCAR): The BRegs Blog presents an opportunity for free expression of opinion on BCAR and their implementation. The blog is not representative of any professional body or organisation. Each post represents the personal opinion of that contributor and does not purport to represent the views of all contributors.

Tag: Building Control

Thoughts on a way forward #bregs #DeirdreLennon

by bregs blog admin team

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Building Control (Amendment) Regulations 2013 SI 80  –

The Minister has confirmed that he wishes to “strengthen the current arrangements in place for the control of building activities “ as part of the 2013 amendments to the 1990 Building Control Act

Indeed,BC(A)R’s SI 80 has been carefully crafted to “require the private sector to provide an active part in achieving regulatory oversight.” This is to be achieved through professionally endorsed notices and certifications along with Contractor endorsed undertakings, each to be submitted to the Building Control Authority at distinct times between commencement and completion of construction projects.

The drafting of this legislation has been in process since 2011 and its Statutory Instrument SI 80 is on the cusp of enactment. No transition period has been allowed. No meaningful engagement or dialogue took place between government and the general public. Engagement with our representatives and other stakeholders took place behind closed doors. This legislation directly affects the practice of architecture and we are therefore all stakeholders in this important matter.

Given the title of this amendment and proclaimed political commitment we may be forgiven for believing that the proposed amendment promises change. Not so.

The devil is in the detail. The role of the Local Authority as Building Control Authority under the Act has changed in one small way. It has to conduct a validation process, an administration function of receipting and recording submissions. The non mandatory Code of Practice states that the Authority will then undertake a risk assessment but there are no details offered as to how or what this means.

In fact, Building Control Authorities intend to rely on the 1990 Building Control Act to continue a practice of zero obligation to carrying out technical assessments and to proceed with current commitment to an undefined number of building inspections –no change there either.

We are being asked to believe that this legislation will create more work for architects, that our professional liability will not increase, that the Building Control Authority will do better and best of all that Contractor registration will come.

If the Minister is really serious about strengthening the Building Control System he can task the Building Control authorities to carry out independent inspection and review protocols similar to that operated in the UK. This system has been tried and tested and following review in 2012 has been confirmed to be the most cost effective solution for protecting the quality of the built environment. We would welcome it.

Deirdre Lennon MRIAI

Member of BReg Forum and candidate for RIAI Council Election 2014

15th December 2013

Thoughts on a way forward #bregs #OrlaHegarty

by bregs blog admin team

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‘Certification and Insurance Plan’: An alternative approach to Inspection & Liability

 The reason that design professionals are concerned about responsibility for certification is that there is a tendency to think that certifying compliance with building regulations is ‘all things, for all time’, effectively a warranty on the entire building.

The public may think that architects are responsible for all matters on site and can control a perfect outcome. This is not the case- the standard expected of a professional architect is similar to that of a doctor or accountant- to exercise due, skill and care and to provide a professional service, not to guarantee the performance of others.

In my view, what is required is a Certification & Insurance Plan, not an Inspection Plan. The inspections, timing of inspections and record-keeping are matters for the contractual parties involved and are better dealt with through procurement arrangements and not as another piece of statutory administration.

The following is a proposal for certification and insurance arrangements. The key points are that Part C- Site Preparation and Part D- Materials and Workmanship are not relevant or appropriate to certification at Design Stage and must be the responsibility of the builder at Completion Stage. The Architect and Engineer do not prepare the site, do not order the materials and cannot control workmanship on site.

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In summary:

  • Design certificates are already issued by the Building Control Authority for Part B-Fire Safety and Part M- Access and Use. For simplicity, Part K- Stairways, Ladders, Ramps and Guards might easily be folded into Part M, due to the obvious overlaps; this would also eliminate some of the internal contradictions between the two standards.
  • Design certificates are currently issued by the Structural Engineer for Part A- Structure.
  • Design certificates could easily be added for Building Control Authority approval of BER calculations to demonstrate compliance with Part L- Conservation of Fuel and Energy. This might simply include elemental calculations for wall, roof, windows etc. on the basis of the Planning Permission drawings, without full specifications. The approvals could be sub-contracted from the Building Control Authorities out to the trained BER assessors.
  • Part E-Sound compliance is measurable at completion and could be covered with a design certificate from the architect.
  • Parts F- Ventilation, G- Hygiene, H- Waste Water & Drainage and Part J- Heat Producing Appliances could be codified and project specific to arrange the design compliance between consultants and installers. For example, design of the ventilation might be the architect for a house or a Services Engineer for a hospital, the number of sanitary appliances might be the responsibility of the architect but the drainage might be the engineer, etc.
  • Part C- Site Preparation and Moisture and Part D- Materials and Workmanship. It could be argued that these are not relevant to Design Certificates as they are ‘site’ matters and cannot be designed. In any case, workmanship, materials and site preparation are outside the control of the design team, which is why these are the areas of greatest concern for future liability.  If Parts C and D are excluded from the Design Certificate and become the responsibility of the contractor at completion, this would significantly improve practices on the site.

 

Following from this the LDI (Latent Defects Insurance) could similarly be codified to the certification plan for the various parts of the regulations. The parts that are measurable and that can be inspected (width of stairs, size of window, sound transmission, air-tightness etc) are easily checked at completion. The certification of the other parts are broken down further, depending on the project and the responsibilities allocated.

It also means that Part C and Part D might be covered by LDI without subrogation, as they are outside the remit of the designers PI. This would mean no recourse to the designers PI for defective materials or workmanship. In practice, this might mean that there is subrogation to the engineer for Part A, but not to the architect for Part M (unless the architect made a mistake in certifying that the Completion Certificate conformed with the approved Design Certificate). There would be no recourse to the architect for pyrites, for example, as checking every stone delivery is not the designers responsibility.

Breaking down the certification also gives clarity to the insurers to assess the risk. In order to determine the risk on a policy this table can be used to measure risk against previous claims. More importantly, future policies can factor in the contractors performance, which is a real incentive to improve site practices as it would drive down insurance costs.

Omitting Part C and Part D from the Design Certificate would also bring the Regulations in line with the Construction Products Regulations, which now require all materials to be in compliance with the EU standards. The architect/ engineer can specify materials but has no control over ordering and deliveries. By making ‘materials and workmanship’ the responsibility of the contractor there is a disincentive to cutting corners and a requirement on the contractor to maintain records. (This alone would have significantly helped to reduce the scale of the pyrite problem).

This system would require a ‘Certification  & Insurance Plan’ at the outset rather than an ‘Inspection Plan’. The advantage of a Certification Plan is that it would overcome all of the difficulties with non-traditional methods of procurement and it would allow insurers an involvement at the early stage of a project, when risks can more easily be mitigated.

Orla Hegarty B.Arch. MRIAI RIBA is Course Director for the Professional Diploma (Architecture) at the School of Architecture, UCD

Thoughts on a way forward #bregs #JoanO’Connor

by bregs blog admin team

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The Obligations of the State

The involvement of the State in the protection of the interests of its citizens is a legitimate expectation and is an obligation of Government in a civil society. The State cannot abdicate its responsibilities to purchasers and users of property and there are means by which Government could control design and construction quality analogous to the operations of the Revenue Commissioners and their use of licensed auditors as a means of discharging the State’s functions in the control and oversight of business.

What is needed is a State-sponsored, self-funding independent inspection system which is credible and authoritative.

Consumer Needs

The consumer – particularly the house owner – must have easy access to a speedy means of resolving significant defects emerging in recently-completed property [particularly the home] at minimum, collateral costs. The current, Courts-based solution is slow, expensive and adversarial, even if a “mark” is found in the end.

The consumer – e.g. house purchaser – should have access to a guarantee, backed by insurance, to which he has immediate access to deal with legitimate complaints regarding defects. This guarantee – sometimes called latent defects insurance – can be provided, at minimal additional cost which would be carried by the Developer.

Such a guarantee would be mandatory and form part of the chain of conveyance and mortgage funding. LDI brings with it the following advantages in the campaign for better building:

  • Better builders will get insurance cheaper, based on track record, and thus will be able to sell more competitively.
  • Bad builders may be unable to get such insurance, ruling them out of the market.
  • The insurers carry out their own design reviews and site inspections, appropriate to the type of project and the risk profile of the building : another, experienced set of eyes looking at the project.

Increased Complexity of Building in Ireland

A multiplicity of approvals and certificates now required to build and there are numerous appointments to made for all building endeavours – whereas the obligations of the main parties to a building contract with regard to building standards are simple – to design and to build in compliance with the Building Regulations – and this encompasses everything – fire, thermal performance, disability access, structural stability, etc.

Appointments include architect, engineers, QS – PSDS, PSCS, Design Certifier, Assigned Certifier [and statutory notifications of such appointments where required]. Approvals, plans, certificates and consents will now include –

Planning Permission [separate regime].

  • Fire Safety Certificate : €2.90 per sq.m., €12,500 max.
  • Commencement Notice
  • 7-Day Notice : €5.80 per sq.m., €25,000 max.
  • Regularisation FSC : €11.60 per sq.m., €50,000 max.
  • Disability Access Certificate [excluding houses] – €800 plus fees, no time limit for issue.
  • Notice of Assigned Certifier [by Building Owner]
  • Undertaking by Assigned Certifier
  • Notice of Assignment of Builder [by Building Owner]
  • Undertaking by Builder
  • Design Certificate – submission of details, full drawings and specifications to BCA
  • Health and Safety Plan
  • Safety File
  • Preliminary Inspection Plan
  • Inspection Plan
  • Completion Certificate by Assigned Certifier and Builder [and acceptance thereof by the Building Control Authority – “BCA”].

Registration of Builders

Notices issued by Building Employer states that the Owner is satisfied that the person or firm appointed is/are competent to undertake the works …. How is a consumer building a house, or indeed a small shop-owner carrying out some alterations – supposed to know whether a builder is competent or not? The response might be that a check of the Builder’s Register should be adequate but such a register is not in place and will not be in place until 2015 at the earliest.

A voluntary register of builders is a nonsense. Registration with teeth needs statutory backing and would take at least two years to develop. It necessitates the establishment of a registration board, standards and codes of practice, grievance procedures, codes of conduct and the like so that there is fair procedure in the event of a challenge to a builder’s registration.

Registration as a system of recognition or public endorsement is more suited to the individual trader or practitioner – or a single, small firm whose entire activities can readily be encompassed and/or understood. It is less suitable for large, multi-faceted contracting firms with multiple employees of wide-ranging skill levels.

Licensing of contractors could be more appropriate, with builders ranked by competence for projects of varying sizes and complexities. A licence would last for –say – three years and might also be used to exempt firms from pre-qualification procedures or to, de facto, pre-qualify them. There would, obviously, have to be control and complaints procedures of some kind.

The Underlying Purpose of Building Regulations

The primary purpose of Building Regulations is to provide for the health, safety and welfare of people in and around buildings.

Some Impacts of S.I.80

S.I.80 is primarily intended to remedy problems in the speculative residential sector but applies to all buildings and material alterations or extensions to existing buildings, including office and factory fit-outs.

Delays to projects planned to start in early 2014, increased costs – already acknowledged by Government, and protracted procedures at completion and handover, often a critical time for new business or business processes.

Building and construction investment forecast to increase by 5% this year and 7.2% in 2014, subject to conditions – an end to a 6-year decline. But regulatory bottlenecks are cited as a risk – and this is the biggest, avoidable hurdle.

Risks to the Government’s capital programme, including schools recently announced.

Reliance on Professionals’ Insurance

P.I. insurance needs to be in place when damage occurs and/or a claim is made. It is no use if the Assigned Certifier has retired [or been let go] , if his PI has lapsed for reasons of cost or whatever.

The PI insurer will cast his eye around the multiple players in the building works and will sue them all on the basis of joint and several liability whereby one, insured actor with even a minimal liability for the damage can be made to carry all of the costs, even for culpable parties who are no longer in business – “the last man standing”. As architects carry PI insurance, they are often that last man [or woman].

A Way Forward?

Dare we look aim for a radical overhaul of the system to simplify the administrative aspects of building control to focus on essentials such as education, inspection and insurance?

Joan O’Connor, President of the Royal Institute of the Architects of Ireland 1994-1995