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 regulations in the United Kingdom

Inadequate Regulatory Impact Assessment for S.I.80

by bregs blog admin team

Audit-Checklist

To find out how one might effectively assess building control amendments we do not have to look far: the “Communities and Local Government: Proposed changes to the building control system – Consultation stage impact assessment” report was produced in the UK in 2012. You can read it here. The report comprehensively examines several options to revise and change the UK building control system. Their existing system, unlike ours, already has comprehensive local authority independent inspections with 80% backed by warranty.

The UK report included the Irish system as a option: light-touch, low-cost (to local authorities), self-certification, but discounted this early on due to cost to the consumer and to the wider industry. Making the system of building control simpler, leaner and more cost effective for society in general is clearly a motivating factor.

The UK is our closest model in terms of building standards, legislative system and environment. We are a fraction of the size of the UK, however our demographics are similar. One must wonder after reading this document, how the Department of the Environment, Communities & Local Government (DECLG) opted to continue with the most expensive form of building control for the industry, when a simple system of self-funded local authority independent inspections would improve building standards and save the industry tens of millions per year, while delivering a better standard of building generally and giving the consumer redress in the event of latent (hidden) defects?

Despite over 500 stakeholder submissions on S.I.80 received by the DECLG, no such study was carried out here. It appears that at no point in the consultation process or formation of S.I.80 have the impacts on SMEs, the industry and the consumer been considered in detail. The National Consumer Agency (NCA) estimates the extra cost to the Irish house building industry alone would be in the region of €30m- €90m per year (based on a sustainable level of 30,000 new dwelling units per year). The financial impact of S.I.80 on the wider industry is likely to be a multiple of this. With no comprehensive independent system of local authority building inspections, the effect of S.I.80 on building standards will not give the return for this extra cost to the industry, nor to the consumer. In their 2012 submission the Competition Authority express concern about “whether the additional costs imposed by the proposed regulations are in proportion to any benefit they might bring”

Worryingly, it would appear that the Department did not carry out a Regulatory Impact Assessment (RIA) of the March 2013 wording of S.I.80. A very brief RIA was completed in 2012 and the lack of a follow-up would suggest some of the very significant changes introduced by the Minister in the March 2013 draft have not been comprehensively examined. The RIA produced by the department is included as part of the following document “Strengthening the Building Control System – A Document to inform public consultation on Draft Building Control (Amendment) Regulations 2012“ . See document here

The Impact section (section 4) of the RIA is only six pages long and does not appear to be backed up with any research. For example, under the Section 4.6(i) Impact on National Competitiveness, the report makes the simple claim “There will be no negative impact on Ireland’s competitiveness”. The only costs noted is a notional cost per dwelling. Remarkably, the more significant insurance costs are excluded. This is an extraordinarily light assessment of a very significant amendment.

We do not need to look to the UK for examples of good impact assessment. The RIA of our own Construction Contracts Act 2013 (available here) and recent Health & Safety Legislation (available here) provide far more comprehensive analysis. Why has S.I.80 only had the most cursory impact assessment done on the 2012 draft and nothing since? Already three Senior Counsel legal opinions completed on the March 2013 draft of S.I.80 identified serious legal and practical issues associated with implementation, and all concurred that S.I.80 is unworkable in its current form. Given the wide-ranging effects on the construction industry, SMEs and the wider economy, it is remarkable that essential stress-testing has not been completed by the department.

Government Reports & Professional Opinion Ignored in S.I.80

by bregs blog admin team

As Minister Hogan prepares to sign off on the final wording of the Building Control (Amendment) Regulations, we take a look at some of the government commissioned reports and the professional opinion that were ignored in the design of S.I.80.

Government Commissioned Reports:

The National Consumer Agency (2012): “the NCA would point to the undesirability of a situation arising whereby one entity could design, build, inspect and certify a building while no inspection by a Building Control Authority takes place.. Should a consumer purchase a dwelling become aware of non-compliance with building regulations, and bring the issue to the notice of the relevant Building Control Authority, the legislation allows the consumer to be designated as the party responsible for bringing the dwelling into a state of compliance. Consideration should be given to providing means by which responsibility for bringing a building up to a compliant state rests with the party responsible for the non-compliance in the first place”

The Pyrite Panel 2012: “…the Panel recommends that the system of independent inspections, carried out by the building control officers, should be strengthened to complement the mandatory certification process for buildings.. Project-related insurance whereby cover for each specific project is available and adequate and is related to the project only”

The Competition Authority 2012: “These concerns are (a) whether the proposed regulations would, in fact, afford proper protection to citizens, (b) whether the additional costs imposed by the proposed regulations are in proportion to any benefit they might bring, and (c) whether placing the onus for compliance on certain individuals involved in the construction process, rather than on an independent arm of the State, is appropriate”

The National Disability Authority 2006: “The findings of the Rogerson (2005) research and DoEHLG’s own 2003 survey suggest the need for vigilant on-site inspection for compliance with accessibility requirements. The provision of Disability Access Certificates does not preclude the requirement for strengthened enforcement and on-site inspection of buildings against Part M”

Chief Fire Officers Association Conference 2012: “Better Paperwork does not mean Better or Safer buildings!”

The Sustainable Energy Authority of Ireland 2013: “It is believed that Latent Defects Insurance (LDI) would provide a cost-effective means of providing long-term protection for the recovery of the costs of repairing or replacing works following discovery of a latent defect. The insured party does not need to prove negligence and defects would be covered even were the contractor company is no longer in existence. Given the complexity involved in contractors individually providing their own policies, there would be a clear benefit in having a single LDI policy, where all works carried out under the Scheme were covered by a single provider, offering a single point of contact for claimants at an optimal cost.”

Professional & Registration Bodies:

The Royal Institute of the Architects of Ireland 2013: “Registration of builders must be part of the new system.. It is essential that the new monitoring and inspection systems provide for planned and random audits – on a risk analysis basis – of the documentation submitted to a local authority before building work actually commences, as well as inspection of buildings during construction… If such systems of inspection and analysis by building control authorities are not in place, then the danger remains of shoddy building practices continuing with consequent risks to the consumer”

Engineers Ireland 2012: “An appropriately strong and active inspection/auditing function being delivered by the appropriate state authorities is equally critically important in strengthening the existing Building Control System”

The Society of Chartered Surveyors Ireland 2013: “The regulations do not address the Building Control Authority’s side of the equation and it will also be incumbent on the Government to ensure that appropriate review of operations occurs in this respect.” Alan Isdell, Surveyors Journal 2013

Self-builders to be phased out under S.I.80

by bregs blog admin team

The forthcoming changes in the Building Regulations in March 2014 (S.I. No. 80 of 2013 BUILDING CONTROL (AMENDMENT) REGULATIONS 2013) have big repercussions for residential self-builders. Nearly 60% of houses constructed in Ireland are self-builds (source NaSBA) and self-building is a common form of construction for houses and extensions; this is especially the case in rural areas.

S.I. No. 80 requires that the owner gives notice to the Building Control authority of ‘…ASSIGNMENT OF BUILDER’:

Item 2. requires the owner to have ‘…assigned the following person as Builder of the works and I am satisfied that they are competent to undertake the works so assigned on my behalf.’

The owner therefore needs to assign a ‘competent person’ to undertake the building works; this raises several questions:

• Who decides whether a builder is a competent person?

• Currently there is no register of ‘competent persons’ that are considered competent to undertake building works; the Construction Industry Federation ‘is progressing the establishment of a Register of Builders in consultation with the Department of the Environment Community and Local Government (DoECLG).’ but this register will initially only be a voluntary register (transitioning at a later date to a statutory scheme).

• Logically a self-builder cannot assign himself unless he is a ‘competent person’.

Self-builders will be required under S.I.80, as clients, to employ a design certifier and assigned certifier (engineer/ architect/ building surveyor)- this is positive as it is unwise for a technically non-experienced person to undertake self-building without professional input. This should be welcomed as a positive development.

If a client is going to be the builder, currently that’s fine- self-builders can nominate themselves (as long as they consider themselves to be ‘competent’ and as builders are currently unregistered this seems to work well for self-builders. The only persons precluded from operating as contractors are Architects.

So, S.I.80 at the moment can only improve the quality of self-builds.

However when a formal register of builders is introduced in 2015 self-builders will need to meet the criteria to become registered, or will be precluded from this role. The criteria more than likely is a minimum of 3 years relevant building experience, tax affairs in order, relevant insurances in place etc.

So, in 12 months self-building will no longer be possible unless the self-builder  is already an established experienced contractor, with their own insurances and tax-clearance documents etc. People who want to undertake works themselves are no longer able to do so. One unintended consequence of this is that rural landowners with some building experience who are capable of managing sub-contractors will no longer be able to inhabit this role- they will be forced down the more expensive route of appointing a main contractor to domestic or other projects that require planning permission (farm buildings, outhouses etc.)

The UK system of Building Control allows for self-builders; their risk-based assessment on the number of inspections takes into account whether the builder is known, his experience/track record and whether there is also an architect inspecting the works (as examples). The Building Control Officer then adjusts the number of visits following this risk analysis based on a points system in order to ensure the build is in compliance with the Building Regulations.

The introduction of S.I.80 denies the centuries old tradition of the Irish person building their home for their family themselves. There are a number of contradictions in S.I.80 and this is one of them. If public opinion forces a u-turn on registration of contractors in 2015 then the basis of S.I.80, that of “regulating” building, will not be achieved. Unregistered and unregulated builders will still be in a position to control the procurement process. Introduce mandatory registration of contractors and self-building will cease to exist.

References to UK Building Control mean England and Wales.

A special thanks to Geoff Wilkinson at TheBuildingInspector.org (Approved England and Wales Approved Building Inspectors)

The UK System of Building Control

by bregs blog admin team

As we discuss the adequacy of the new building control amendment, it might be useful to look at systems in other countries. For the purposes of this post we have focused on the Building Control system in England and Wales (The differences in Northern Ireland and Scotland are addressed at the end of the document).

The Building Regulations in England and Wales are set by the Communities and Local Government (CLG).

You have two choices over who supplies your Building Control service:

1. The Local Authority Building Control section or

2. Independent ‘Approved Inspectors’

The Approved inspectors are relatively recent (since the Building Act 1984) and are licensed by the Construction Industry Council For further details on the Approved Inspectors CLICK HERE

Once you have chosen your preferred Building Control service you then have two routes to ensure you are building in accordance with the Building Regulations. When using the Local Authority Building Control method the options are:

1. Full Plans Approval

a. You submit all the construction drawings, details and specifications for inspection/checking.

b. You are then informed of any defects/amendments that need to be addressed in order to receive approval. You can receive a conditional approval where items can be addressed prior to work commencing.

For more information on the Full Plans method CLICK HERE

2. Building Notice

a. You give minimum 48 hours notice to the Local Authority of your intention to build. There is an inherent risk in proceeding in this way as you do not have the benefit of ‘approved’ plans.

For more information on Building Notice method CLICK HERE

Inspections

It is a requirement of the Building Regulations that the builder notifies the Local Authority Building Control section at various stages of the work; this triggers an inspection to ensure the work is carried out at that stage correctly. Failure to give such notice may mean that you are required to break open and expose the work at a later date.

There are minimum days on the required notice that you are required to give (normally on cards provided for this process); for details on the minimum notices and for further information on these site inspections CLICK HERE

The method if you use an Approved Inspector is slightly different in that you and the Approved Inspector jointly notify the Local Authority Building Control Section of your intention to build in an ‘Initial Notice’. Once this notice is accepted, the plans and site inspections are then checked, inspected and approved by the Approved inspector.

Completion Certificate

On completion the Local Authority Building Control Section or the Approved Inspector will issue a final completion certificate stating that the works have been constructed in accordance with the Building Regulations.

Northern Ireland and Scotland

The Approved Inspector route exists only in England and Wales and not in Northern Ireland or Scotland where you only have the Local Authority Building Control Route, although independent inspectors are envisaged in Scotland.

In Scotland the Building Regulations approval to build is called a Building Warrant. The design is approved by the local authority and the architect ‘self-certifies’ that the approved design has been built, at the end of the construction process. All newly built and newly converted dwellings are backed by designated warranty schemes (insurance) as in England and Wales.

In Northern Ireland, there is a full system of local authority inspections for all stages of all projects, even small domestic works. More information is available at http://www.buildingcontrol-ni.com/

You can read more about the systems in Scotland and Northern Ireland in the Irish Consumer Agency/ Grant Thornton Report ‘Building Regulations and their Enforcement’ available at http://corporate.nca.ie/eng/Research_Zone/Reports/Home_Construction/NCA-Home-construction-Volume-5.pdf

A special thanks to Geoff Wilkinson at TheBuildingInspector.org (Approved England and Wales Approved Building Inspectors)

An opinion piece by seven Past Presidents of the Royal Institute of the Architects of Ireland

by bregs blog admin team

PROTECTING THE CONSUMER THROUGH BUILDING REGULATIONS

In March of this year the Government introduced new building regulations in the wake of the widespread instances of defects in speculative apartments and houses which many believe were due in large part to the lack of any effective building control system in Ireland in the past 30 years. The new regulations (SI.80 of 2013) take effect from 1st March 2014.

The regulations were drafted following consultation between construction industry stakeholders and officials from the Department of Environment, Community and Local Government. Other interest groups, such as representatives of consumer interests, building control officers, apartment owners or building management were not included in this process.

In summary, the regulations continue with a modified system of self-certification whereby an assigned certifier appointed by the developer/builder and those involved in the design and construction of buildings will certify that the work they have done complies with the regulations. Where defects occur, it will be up to the house or apartment owner to pursue whoever they deem to be at fault through the courts. There is no significant involvement envisaged for the Local Authority, other than keeping a record of certificates and other documents related to the project. It is incomprehensible that the State should legislate for a system which relies on a home owner proving negligence by some wrongdoer in the courts after a defect has been discovered as the sole deterrent to defective design and construction and as the sole means of getting it rectified.

At a recent general meeting of over 500 members of the Royal Institute of the Architects of Ireland, (the largest number of architects ever to gather in Ireland) those present voted overwhelmingly in favour of a motion which included the following statement: “The meeting believes that the said S.I. 80 of 2013 will not achieve the objective for which it has been introduced, and that the consumer will be no better protected than was the case in the recent past because of shortcomings in the said Regulations”

What is needed is a system that prevents defects from occurring in the first place and provides protection to homeowners without having to go to court, should that system fail. Such systems operate successfully in many other countries, including in Britain and Northern Ireland, with inspection of design and construction by independent private sector inspectors acting under the control of Building Control Authorities. When combined with a state controlled system of latent defects insurance it will at once improve the quality of design and construction and protect the consumer against building defects. Such a system can be achieved at little or no cost to the State. It needs little or no legislation to implement.

With just a few weeks to go until the new regulations come into force, Department officials and industry stakeholders are still working on possible minor changes to the regulations. As a result of this uncertainty and the complexity of the issues, little has been done to assess what changes are needed to standard procedures and documents such as standard government and private sector forms of contracts, sub-contracts, warranties, all of which are critical to the industry. Local Authorities are unprepared for the few administrative functions that they are expected to undertake. There is no possibility of rectifying these matters in the time available. As a result, the implementation of the regulations in March 2014 is likely to cause significant delays across the whole of the construction industry with consequent disruption of other sectors which are dependent on it.

Irish people, none more so than those who purchased defective homes, are suffering the consequences of the light touch self-regulation adopted by successive Governments in the past. The present Government has regulated financial institutions, food production, nursing homes, crèches and even septic tanks. It is surprising to imagine construction might be the only major industry allowed to regulate itself.

We are calling on the Government to do the following:
1. Review the proposed system, not only with the industry stakeholders but also with representatives of consumer and other groups affected;
2. Defer implementation of the regulations until that review has taken place;
3. Revise the proposals to provide a system that will improve the quality of design and construction and protect the consumer.

Signed: Michael Collins, Peter Hanna, Arthur Hickey, Padraig Murray, Eoin O Cofaigh, Joan O’Connor, Sean O Laoire