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: Construction

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

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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)

A Hiatus in the Construction Industry?

by bregs blog admin team

UniversityCollegeCork

Last Friday University College Cork (UCC) sought tenders for a design team for a new Student Hub envisaged to support learning and employability skills for students. The Hub is part of the university’s plan to “be largely self-funding within five years, saving the Irish taxpayer millions of euro a year” Irish Examiner 25/05/13

The tender specifies that the project architect “will have overall responsibility for full compliance with the New Building Control (Amendment) Regulations 2013 which will come into effect on the 1st of March 2014… and will act as the Assigned Certifier for the project duration”. This seems prudent on UCC’s part, after-all projects that commence on site from the 1st March next year must comply with the new regulations.

The problem is revisions to the regulations are still ongoing and the role of the Certifier is as yet unknown. Once the regulations and the roles are confirmed, more time will be needed for new contracts to be written, for insurers to confirm they will indemnity the Certifier, for professionals to up-skill for their new role and for appointments to be agreed.

The public sector is not ready either, as it emerges that the promised IT systems will not be in place for the 1st March. Yet no additional resources will be be provided in the understaffed Building Control Authorities to deal with vast amounts of paperwork required under the new regulations

It seems inevitable that the UCC project will be on hold until all of this can be sorted out. The situation is even graver for projects already underway and due to start on site from 1st March. Existing contracts will need to be unraveled and new ones formed. All in time for March 1st, or virtually no new projects will start on site.

Will this mean a hiatus in the construction industry, just as it beginning to get back on its feet?

For a more detailed analysis of the expected delays in the Construction Industry, see our report here

Dispensations and Transition Arrangements

by bregs blog admin team

Dispensations:

S.I.80 does not make any additional provision for dispensations but does specify that they will be included on the Building Control Authority Register. Under the 1990 Building Control Act “a building control authority may, if it considers it reasonable having regard to all the circumstances of the case, grant a dispensation from, or a relaxation of, any requirement of building regulations”.

However, there are some difficulties with the provisions for dispensations.  David Keane (Building and the Law, Gandon 2003) sets this out:

 “Section 4 of the Building Control Act contains the provisions for dispensation or relaxation. At the time that Act was drafted, it was anticipated that the Building Regulations might be in the form of the revised draft Building Regulations which were originally published in 1981, but in the event the Regulations as they finally appeared were so concise that any relaxation or dispensation is almost impossible. Take for instance Part F, which says: ‘Adequate means of ventilation shall be provided for people in buildings.’ Remember that the technical guidance documents are not the Building Regulations. The Building Regulations are the items set out in S.I. 497 of 1997 and nothing else. They are the law. It would be difficult to imagine a situation where an application could be made to allow inadequate means of ventilation for people in buildings. It can be taken that the relaxation and dispensation provisions will not trouble us very much, although it is possible that sympathetic use might well be made of them in the difficult cases of material alterations”.

This means that although a provision for dispensations is included in the Building Control Act, in practice it is not workable and the Certifier does not have easy recourse to this provision.

Transition Arrangements:

There are no transition arrangements in S.I.80. The Regulations where a Commencement Notice is lodged on or after 1 March 2014 including

  1.  the design and construction of a new dwelling;
  2. an extension to a dwelling involving a total floor area no greater than 40 square metres (this was an error in the published regulation and is to be corrected to mean domestic extensions over 40 square metres);
  3. works which require a Fire Safety Certificate (this will include new build, extensions, works to existing building, material alterations and later phases of some projects).

It can take many months and sometimes years from the date the professional team is appointed to when a building is ready to commence on site. Without transition arrangements, projects designed or partially built under older standards will pose particular difficulties after 1 March.

Furthermore, as Commencement Notices are lodged for each building, rather than for the whole development, sections of projects may come under the new arrangements and this has implications for completing ghost estates, fit-outs, phased work and re-starting abandoned projects.

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