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: regulation

The Consumer and the Contradiction at the Heart of S.I.80

by bregs blog admin team

As industry stakeholders debate with the government on the final wording of the new regulations, we ask has the consumer been forgotten?

In the original wording the Government strategy was to protect the consumer through facilitating people with unsatisfactory buildings to identify a clear legal target – the Assigned Certifier – who is backed by professional indemnity insurance and who may readily be pursued legally.

“The Regulations … give home-owners clarity, traceability and accountability at all stages …. They will provide consumers with the protection they need and deserve. … The mandatory certificates will be clear, unambiguous statements on statutory forms stating that each of the key parties to a project certifies that the works comply with the building regulations and that they accept legal responsibility for their work … this new statutory certification is a key consumer protection measure … If anyone signs a statutory certificate for a building which subsequently proves to be non-compliant, they can be held legally liable for the consequences.”  Minister Phil Hogan 04/04/2013

Putting aside the question of whether making one person responsible for the work of all the others leads to better building, this strategy was found to be unworkable as the role of the Certifier was found to be uninsurable by the insurance industry.

The answer proposed by the industry stakeholders is to allow the Certifier to rely on other peoples’ confirmations and test reports, so that each player is responsible for their own role and the Certifier can obtain insurance. However the more the legal target is diffused, the harder it is for the Consumer with the defective building to obtain redress – and the less consumer protection.

This circle cannot be squared. “Solutions” merely blur the issue, to the detriment of consumer and certifier alike.

From the quarry in Kerry to the glass manufacturer in Spain, the consumer will have to pursue redress through the courts with no guarantee of success. Critically, the component of independent local-authority building control inspections is missing from S.I.80, and a building contractor with an in-house certifier can design, build and self-certify as a single entity.

Self-certification is No Certification and Self-Regulation is No Regulation.

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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.