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: si80

BRegs Blog: have your say!

by Bregs Blog admin team

The BRegs Blog is welcoming ‘Opinion Pieces’ by those who will be affected by the proposed Building Regulation Amendments. Whether you are a self-builder, engineer, building surveyor, building control officer, architect, architectural technologist, contractor or an ordinary citizen. Whether you are for or against the Amendments – we welcome your opinions.

Please email text only to

bregsforum@gmail.com

UK focusses on Irish Building Regs in @GeoffWilkinson article for Architects Journal

by Mark Stephens

The following article is published today in the Architects Journal. Written by Geoff Wilkinson, Managing Director of Wilkinson Construction Consultants the article summarises the proposed Building Regulation Amendments under SI No.9 (formerly SI80) and voices the concerns of Irish architects concerning increased liability. Click on image to download pdf (180Kb):

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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

Home-owners will be no better off at the next “Priory Hall”

by bregs blog admin team

In 2014 a builder-developer purchases a site. He commissions an architect to make a planning application for an apartment block, which is granted by the local authority. The builder-developer has in-house professionals and he appoints one of these “Assigned Certifier” to inspect the site under the new regulations. The certifier  uploads the required number of drawings and documents to the local authority IT system. The local authority do not look at any of these files, nor do they ever visit the site during the course of the build. The building is therefore built in exactly the same manner as it might have been built over the boom with internal controls only, no external Local Authority controls.

The apartments are put on the market in 2015 and Mr. & Mrs. Ryan purchase one. Four years later cracks in the building begin to appear. Investigations are completed at the apartment owners’ expense by the management company. Experts announce that major remedial works will be required. The Ryans have to move out of their apartment. They must find the money to fix the problems and sue the builder and the certifier.

Meanwhile the builder-developer has gone into liquidation. As a result, the certifer lost his job and the PI insurance was cancelled. This needed to be in place when the problems appear to be of any use. Who is going to pay to fix the problem?  Is the only hope to gather public support and ask the government to step in?

Has S.I.80 changed anything for Mr. & Mrs. Ryan?

Is there an alternative?

A system of independent checks and inspections on the site would have prevented this situation from arising in the first place. If there was a problem, the local authority could have required the builder to fix the problem or taken him to court before the apartments were sold. Had hidden (latent) defects later appeared, state operated Latent Defects Insurance (LDI) would pay for the repairs immediately. The insurance company would then go on to sue the builder and the professionals, keeping the Ryans out of court.

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)

Meath Apartment evacuations could have been avoided, but S.I.80 will not ensure compliance #bregs #MichaelCollins

by bregs blog admin team

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Image: The Irish Times

The core issue is that we have had no proper Building Control in Ireland for over 20 years.  The reality is exemplified by the news this morning that another group of unfortunate residents have to leave their apartments which, it was reported on RTE, were constructed without obtaining a fire safety certificate.  That is a breach of the building regulations and people are entitled to ask how could that happen?  The answer is simple.  The Local Authorities did not have the resources in many cases to pursue such things but, more significantly, they have repeatedly claimed that they cannot bring successful enforcement proceedings in the courts because of the defects the current Building Control Act. You would expect that this would be the first thing to be fixed in any revision to the Building Regulations.  In fact, there is nothing in the new regulations (which are to come into effect in March 2014) that will address that issue. This brings us back to the reality that the State is intent on continuing with the “hands off”, “light touch”, “self-regulation” which has failed so spectacularly!  We will continue to have Building Control Authorities who can’t control.

Michael Collins, President of the Royal Institute of the Architects of Ireland 1986/87

“severe risk of a hiatus in the construction industry” #bregs #Morning Ireland #JoanO’Connor

by bregs blog admin team

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Interview with Joan O’Çonnor on Morning Ireland: ‘RIAI call for postponement of Building Regulations’ 

Podcast at: feed://www.rte.ie/radio1/podcast/podcast_morningireland.xml

Listen back at: http://www.rte.ie/news/morningireland/

S.I.80 and some of the consequences after March 2014

by bregs blog admin team

Sands of Time

The following post was submitted to the Blog in November 2013. Authors of this paper are: Orla Hegarty, Joe Kennedy, Michael Collins and Eoin O Cofaigh.

1.         Background

1.1       The Building Control (Amendment) Regulations, 2013, S.I. 80 of 2013, were passed into law earlier this year and come into force on 1 March 2014.  They represent a significant change in the way construction projects are inspected and certified and will affect virtually all building projects. The regulations require the appointment of a “Design Certifier” and an “Assigned Certifier” to certify respectively that all aspects of the design and all aspects of the construction comply in full (as against substantially) with the Building Regulations.  The Certifiers can be Architects, Chartered Engineers or Building Surveyors.  The new Regulations also require the submission to the Local Authority of a “Completion Certificate” which the Local Authority must review and accept as being valid before the building is allowed to be opened, occupied or used.   Finally, the Regulations require the submission to the Local Authority of full detail designs and specifications for all projects in advance of construction commencing.  These must cover all aspects of the design which fall under the requirements of Building Regulations.  The Local Authority maintains these on record with the expectation that the material will be available to interested parties.

1.2       A consequence of the Regulations is that they rebalance the relationships between the client and his / her designers, main contractor, design specialist subcontractors, and materials suppliers. This induces a need for rewriting of the standard forms of building contract and service contract. The private sector documentation is being looked at, but only very slowly, because of the complexity of the changes needed and their extent across the documents involved.  There appears to have been an underlining set of assumptions on which the Certification regime was predicated; that is that the Design Certifier, Assigned Certifier and Architect/Employer’s Representative would be one and the same person.  Otherwise it would be hard to understand how there is no reference to the relationship between the three.  That was a short-sighted assumption.

1.3       The Regulations respond to disasters in, primarily, the speculative residential sector and seem to have been conceived primarily with this sector in mind.  In this sphere the design is largely complete, or capable of being made so, before the construction process starts and when the Design Certificate must be lodged with the Local Authority.  Furthermore, in the commercial residential sector there is an easily-achievable time lapse between Project Completion and Handover.  However, the Regulations cover virtually all construction projects in the State.  Furthermore, the Regulations are not adapted to different forms of construction project procurement.  One single “Assigned Certifier” must certify compliance with Building Regulations for the entire construction.  The regulations do not appear to allow for, e.g., multiple parallel main contractors, or for separate shell-and-core and subsequent fit-out contracts.  They do not recognize the extensive design input from engineering or envelope specialists.  In public sector procurement, revised conditions of appointment and revised PWC contracts have not yet been published, and the “Exemplar Design” system will have to be changed to reflect the new appointments, inspections and certification arrangements.

2.         Impacts

2.1       The new Regulations will impact the procurement and site operations of all projects due for construction after 1st March 2014.  The main areas that will be impacted are:

Client procurement of the Design Certifier and Assigned Certifier.  These roles do not exist at present. There is no certainty that either (in particular the Assigned Certifier) will be the Architect.  Where Design Teams are currently appointed on public projects, the issue of compliance with procurement rules will arise.  ( It is alarming to note that UCC is asking Architects to include the two Certifier roles as part of their general service submission in a current tender notice.  This is clearly a restrictive practice as it excludes those firms who do not want, in particular, to offer Assigned Certifier services.)

Tendering.  It is essential that the correct Contract details are included in tender documents.  That is not possible at present and there is no indication as to when new forms of Contract, which make provision for the new inspection and completion regimes, will be published.  Projects, currently being tendered with a post March 2014 commencement date, are going to present potentially difficult problems.

Inspection Plan. The Assigned Certifier is obliged to prepare an Inspection Plan before construction commences.  This plan may have cost implications for the Contractor and arguably needs to be a tender document.

Changes and evolving design.  Where changes are required after Commencement Notice or where specialist design was not possible before construction commenced, the new Regulations do not appear to facilitate these common activities.

Inspections and testing.  The Assigned Certifier has a very onerous set of responsibilities and the inspection, opening up and testing regimes may be very disruptive to progress of construction at certain times.  In particular it is envisaged that the Assigned Certifier will carry out unplanned inspections where he deems this appropriate. Where the Assigned Certifier is not the Architect or Employer’s Representative, he / she has no contractual authority or responsibility as contracts currently stand.  However his actions may result in contractual claims.

Contractual Relationships. Relationship between Contractor and Sub-Contractors will be affected by the need for all paperwork confirming compliance to be in place before the building can be occupied.  While this in itself is not necessarily a bad thing, situations where the Contractor and Sub-Contractor are in dispute could have extremely significant consequences for the project.  There is no obligation in S.I.80 or current forms of contract that obliges a Sub-Contractor to issue Certificates of Compliance.

Practical Completion.  Normally defined as being when the building can be used for the purpose it was designed, this will fundamentally be changed with the new Completion Certificate.  The building will now be capable of being used for the purpose it was designed when the Completion Certificate is accepted.  The time stipulated for this is three weeks (a) after the Assigned Certifier and the Builder both certify that the construction and design are in full and complete compliance with all the relevant aspects of the Building Regulations or (b) if all the various documents are submitted 3 weeks in advance of PC, one day after the Completion Certificate is issued.  (b) on the face of it seems like it would allow for PC and the Completion Certificate to coincide; we all know from experience the difficulty in getting all the paperwork, as–built drawings etc gathered and collated in a timely manner.  Getting these in place a month before projected PC is optimistic at best.   There is little confidence that all of the Local Authorities will have sufficient or appropriate staff to assess the huge amount of documentation that will accompany the Completion Certificate and rejection on spurious ground will no doubt become a common occurrence.

2.2       The Law of Unintended Consequence is expected to be a popular visitor to building projects on foot of the new Regulations.  Some that can easily be foreseen at this point in time are:

Hiatus.  A major hiatus in the Construction Industry is likely in both private and public sectors.  Anecdotally, this is already happening with some project tenders being delayed until there is more clarity.  To avoid such a hiatus, tested and appropriate forms of contract need to be already in place.  They are not available now when tenders are being prepared and even if they were available on the 1st March 2014, delays are unavoidable.

Building Control Authorities. It has been confirmed that the promised IT systems in Local Authorities will not be in place by March 1st but, at the same time, no additional resources will be provided in the understaffed Building Control Units to deal with vast amounts of paperwork.

Contractual Claims.  There is already a considerable number of GCCC projects in some form of Dispute Resolution.  The new requirements will open new avenues for the claims-conscious Contractor, eating up more and more unpaid resources of the Design Team.  Proper Scenario Testing could avoid much of this.

Disputes.  Many of the Building Regulations are generalised statements about quality and intent and lack detail.  Disputes arising from the interpretation of these are inevitable with subsequent delays during the construction process.  This is exacerbated by the fact that the Assigned Certifier is a private individual under SI 80 and does not carry the weight or protection of a Local Authority.

Legal Action.  The real prospect of delayed occupation of buildings following a protracted Completion Certification process is a fertile ground for legal action against Certifiers, Design Teams and Contractors.

Costs.  Better buildings will cost more money as will the additional roles required under the new Regulations.  In addition, value engineering after the Design Certificate is submitted is not envisaged in S.I.80.

Extended Project Periods.  The administrative load resulting from the new Regulations will lengthen project start-to-completion periods.  In complex projects where follow-on contracts are needed after the main contract is complete, there may be lengthy intervals to enable one process be completely finished before the next commences.

       

3          Some Interesting Questions.

3.1.      What happens to projects with shell-core contract followed by a fit-out contract? The Regulations have implications for many other forms of procurement. For example, it seems that shell-core contracts may require that the fit-out is sub-contracted under the first contract. There is no obvious provision for a Completion Certificate for the Shell-Core work which permits a new ‘builder’ for the fit-out (which might be under a new FSC).

A ‘one size fits all’ regulatory system does not fit complex building projects that are better suited to more complex,  flexible or efficient forms of procurement.

3.2       What if the owner changes? Can the Assigned Certifier resign and or is he/she effectively ‘novated’ to the new owner, possibly without his/her consent, as the duties of the Certifier continue to the completion of the project.

3.3       What information should be included in current tender documents? Many projects being currently tendered are likely to start on site after the 1st March ’14.  What contract form should be referenced? There is no guidance as to how to include provisions for the impact of S.I.80 and tender reports will be heavily qualified.  Clever tenderers will find ways of using this situation to their commercial advantage.  Negotiations with the apparent lowest tenderer to take into account additional provisions and changes to Contract forms will leave the door open to challenges by unsuccessful tenderers.

3.4       What happens if the architect/designer is novated to a Design-Build Contractor (having worked for the owner at the design stage)?  If the architect/designer is novated to the Design-Build contractor, will he/she have to be retained by the owner in a separate direct appointment or will another Certifier be appointed to the project?  The contractual implications and potential areas of conflict of interest need to be considered.

3.5       What happens if the Local Authority does not include the Completion Certificate in the Register after the stipulated periods? The wording of S.I.80 requires the local authority to enter in the Statutory Register details of ‘any valid Certificate of Compliance on Completion accepted by the Building Control Authority’. This wording is imprecise. There are no criteria for validity, no time-limits or procedures for the local authority to formally declare a Certificate invalid, no requirements to set out the reasons why it has been determined invalid, no provision for timely appeals etc.  What happens if you have a contrary Building Control officer?

3.6       What happens if there is a dispute over the interpretation of a Regulation? The Irish TGDs are based on the UK system. In the UK it is normal to have broad guidance in a system of prior approvals. The ‘interpreting’ is resolved at the approval stage, prior to construction. The Irish system has the same broad guidance without approvals and as a result there exist many areas of dispute over interpretation.  Under S.I.80, this has not been addressed and there are now further areas of potential conflict between the building control officer (with statutory authority), the architect (with contractual authority) and the Certifier (with statutory obligations, but no powers).

3.7       What happens if you have a rogue builder and you want to resign as Certifier? You cannot resign unless the owner (perhaps the same rogue builder) writes to the Local Authority and releases you.

3.8       What happens to Enabling Works contracts? Do all projects now have to have a main contractor on site from Commencement, with associated costs? This also has implications for other forms of procurement including construction management, management contracting etc.

3.9       What happens if you want to have give Partial Possession? There is no Completion Certificate so the building cannot be occupied until all phases are complete.

3.10      What happens to ghost estates and abandoned projects which need to re-start next year? Ghost estates may only have Commencement Notices for earlier phases, Nama projects may need revised Fire Certificates, changes in standards may not be achievable etc…

3.11      What happens if you have a nominated sub-contractor with responsibility for design? How does his design certification get reversed into the Design Certificate, which has to be submitted before the project starts on site? This also has implications for the design responsibility under the Collateral Agreement.

3.12      What happens if the Contract is determined by the Employer? In a case where the quality of finishes is of such a poor quality and the Contractor cannot demonstrate an ability to get these right, the Employer on the recommendation of the Contract Administrator, may take measures to determine the Contract and employ another Contractor to complete.  Who signs the Completion Certificate – the ‘Builder’ is defined in the Regulations as the person appointed at the outset of the Project and it is he who must certify on completion.

3.13      What happens if a Sub-Contractor has not been paid by the Main Contractor and subsequently refuses to hand over compliance documents that only he can deliver?  The ultimate consequence of this is that the building may never be “opened, occupied or used”.  There is no facility for deviation from the proscribed process in exceptional circumstances.

3.14      What happens if there is a defect in the Design Certificate?  Under S.I.80, the Builder confirms he has built in accordance with Building Regulations reliant on the design as certified.  This important qualification exonerates him from building some element that is not fully compliant if the Design Certificate has not picked it up.

3.15      If the Design Certifier and the Assigned Certifier differ, what is the outcome? As mentioned above, the Building Regulations are not absolute and prescriptive in every detail.  It is foreseeable that a Design Certifier will take one view and an Assigned Certify will disagree and, because he is the single point of liability, will refuse to certify on completion.  This could have been avoided if the design was audited pre-construction and the subsequent Certificate became prime facie confirmation that the design was fully compliant.

3.16      Who referees disagreements between the Architect and Assigned Certifier where they are different people?  The Building Regulations cover Workmanship and Materials and the Architect and Assigned Certifier may well have different views as to what an acceptable standard is.  Potential for stand-off arguments is obvious as both have different contexts for their positions; one compliance with Statutory requirements only, the other with broader duties and responsibilities to his / her client.

3.17      What happens if your Completion Certificate is deemed invalid?  The client will not be able to use or occupy the building and you will be liable to be sued. 

4          Consequences for Design Teams

 4.1       There is a perception that the new Regulations will really only affect Architects and their PI Insurance.  A deeper analysis leads to an understanding that the implications are far broader for all those involved in the Construction Industry and, particularly, the building professionals.

4.2       Clients expect that buildings are designed and built in a compliant manner and take it for granted that the Design Team is doing their job properly.  SI 80 is expected to increase the cost of buildings, as has been acknowledged by Minister Hogan; clients won’t be thrilled about this.  SI 80 is also likely to delay the commencement of construction, lead to longer construction period where intrusive inspection is required, delay the ability to open or occupy a building and increase the incidence of contractual dispute, all of which will in turn lead to unhappy clients.

4.3       There will be a significant increase in work load without a proportionate increase in fees, certainly for the Design Certifier, the Project Manager and the Contract Administrator/ Employer’s Representative.   All Design Team members with a design responsibility will have to certify their own designs, ideally before tender documents are completed to avoid and all specialist designers likewise.

4.4       The Preliminary section of Bills of Quantities will need to be redrafted to incorporate the implications of S.I.80, in particular with regard to the role of the Assigned Certifier and Completion.  These will become more complicated in complex buildings with multiple owners and follow on contracts.  The Main Contractor (Builder) and all sub-contractors will need to be obliged to submit compliance documents before hand-over.

4.5       There will be a learning process in getting familiar with new forms of contract, necessitating putting more time and effort into the never-ending CPD process.

4.6       An increase in Contractual Disputes is anticipated.  When Architects, Quantity Surveyors and Engineers get dragged into these, they absorb huge amounts of time and resource which is rarely billable.

4.7       Many projects planned for next year will be delayed unless the 1st of March deadline is postponed because the key elements to allow S.I.80 be rolled out are not in place.  This will obviously, and in some cases lethally, affect cash projections and workloads for many firms.

4.8       The current wording of the Certificates in S.I.80 has been confirmed as not being insurable by PI Insurers.  Draft amended wording has been published but not accepted yet by the Minister.   Senior Counsel has been engaged to give an opinion on the additional liability arising from the proposed/draft amended wording.  Some PI Insurers may be able to extend cover for this wording but at what additional cost is unknown.  (The prospect of being sued by a client because the paperwork at Completion Certificate stage is not accepted by the Local Authority and the client looses a valuable tenant is a brand new risk.)

 5          Conclusions.

5.1       The lack of scenario testing and limited consultation that has accompanied the drafting of The Building Control (Amendment) Regulations, 2013, S.I. 80 of 2013 is a recipe for disaster or at best confusion.  At a time when the building industry is trying to come out of a nose dive and the overall country is on a fragile road to recovery, what we least need is a totally avoidable crisis in one of the fundamental elements of the Irish economy.  Many stakeholders across the sector are calling on Minister Phil Hogan to postpone the introduction date to facilitate a serious review of the shortcomings in the Regulations and allow for proper preparation.  Foreign Direct Investment companies are going to be frustrated by the new layers of administration and risk.

5.2       The potential for less than scrupulous Contractors to misuse S.I.80 as a way to coerce or escalate disputes for commercial gain is clear.  In addition, there are several the possible conflicts with CCA2013 that do not appear to have been addressed.

5.3       Notwithstanding the practical and real issues raised above, there are serious reservations about the detail of the Regulations in relation to Consumer Protection, unfair transfer of risk to a small number of individuals and absence of a proper regime of independent audit and inspections.  These arguments are set out in other papers and can be made available to anyone who wishes to read them.

To read the SI 80 document, go to:

http://www.environ.ie/en/Legislation/DevelopmentandHousing/BuildingStandards/FileDownLoad,32732,en.pdf

This paper is intended for interested members of the construction professions.  It is one of several papers prepared by the B Regs Forum. Contributors to this paper are: Michael Collins, Orla Hegarty, Joe Kennedy and Eoin O Cofaigh.

“We simply cannot allow buildings to go uninspected.. #CiaranCuffe #bregs

by bregs blog admin team

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..and I think that means Phil Hogan has to make sure that people inspect buildings. Whether its the council officials or whether its his officials, you need some system of inspection”

“Ultimately we have to move towards a registry for the builders, so we know if somebody is a bona fide builder or not, and also, I think the County Council or the City Council has to have some system of inspections. That’s what happens 50 miles up the road from Navan in Northern Ireland, it happens in Wales, it happens in Scotland, it happens in England. And around Europe there is some system of inspection”

“Without a reasonable expectation that you will be inspected, there will be people out there who will avoid complying with the letter and the spirit of the law”

Ciaran Cuffe on The Right Hook, Newstalk:   http://www.newstalk.ie/player/listen_back/9/5835/27th_November_2013_-_The_Right_Hook_Part_3 (Interview begins at 04:05)

“What is needed is a system that prevents defects from occurring in the first place”

by bregs blog admin team

Article in today’s Irish Times on Building Regulations http://www.irishtimes.com/life-and-style/homes-and-property/architects-say-building-regulations-need-review-1.1609227

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

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.

What is PI Insurance?

by bregs blog admin team

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PI (Professional Indemnity) Insurance is taken out by those providing a professional service to provide cover against claims for error or negligence. Generally, PI covers the legal fees involved in defending a claim and the cost of ‘righting the wrong’ if the professional was found to have been at fault.

PI is to protect the professional against a claim, if he makes a mistake. It is, sometimes mistakenly, considered as future warranty for the building owner available to fix anything that goes wrong with the building. This is not the case, as there is no certainty that the professional was at fault or that a claim will be upheld in court.

There are two important points about PI:

Firstly it is on a ‘claims made’ basis.  The claim must be made during the policy, so a 2013 policy covers claims made in 2013, regardless of when the problem happened in the past. This is not like motor insurance- if you crash today and cancel the policy, a future claim will be valid once insurance was in place on the date of the accident.  This poses a problem for professionals and consumers alike; because in order to provide redress, PI insurance would have to be kept in place until the statute of limitations applies.

Secondly, in Ireland there is ‘joint and several’ liability. This means that even if a professional is 1% liable, the entire claim can be made against him as the ‘last man standing’.

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.

A Rural Perspective #bregs #VivianCummins

by Mark Stephens

Vivian Cummins -  RIAI Eastern Region

Rural-Based Architect versus the Building Control (Amendment) Regulations 2013

While I was reading the forty questions about the BC(A)R 2013 that the RIAI Past Presidents put to the current RIAI Council last week I was wondering about how many of them related to my own business and to rural dwellers in Ireland. I was particularly interested in Question 32: Where are the supports for architects [as recommended by the National Standards Authority of Ireland]?

With a small rural-based practice on the Kildare/Carlow/Laois borders I have a mixed bag of work. For the last five years it has morphed from medium scaled commercial work to mostly residential with fortunately lots of legal due diligence work that has helped to keep the wolf from the door.

My biggest challenge with residential work has always been justifying a reasonable fee when measured against a local unqualified ‘planning permission practitioner with pencil’ (aka Architecture-Lite). This is someone who does planning applications for a house, all in, say for €999 and does not charge VAT. It is a lonely, uphill battle to try and explain to potential clients the level of expertise now required in the increasingly regulated business of architecture from Building Regulations to Health + Safety requirements. The poor person trying to build their new home will be faced with so many new paperwork and bureaucracy costs that they are very likely to make the mistake of skimping on the most important part – having a suitably qualified architect from the outset who will produce compliant designs.

If these onerous regulations are imposed it is regrettable that there are no agencies being provided simultaneously that will provide guidance, help to improve standards and iron out problems such as currently exist with the food, farming and site safety sectors. I will be left to appear like the fuss-pot with all my ‘essential’ paperwork whereas ‘planning permission practitioners with pencils’ and their clients can continue to ignore all of that and self-build to their hearts content. They can seemingly disregard all legislation without any risk of censure from statutory authorities. Will this change in any real way with the BC(A)R 2013?

I am always proud to introduce myself as an architect when I first meet people. I am not so sure that ‘assigned certifier’ will have the same ring. I am not looking forward to 2014 and having to explain, on my own, yet another major raft of unnecessarily complex legislation to a largely unsuspecting public.

Vivian Cummins, B.Arch. (Sc), Dip. Arch., Dip. Arch. Tech., MRIAI
Nominee for the Eastern Region member of the RIAI Council 2013.

€10m Pyrite compensation pack agreed – Will anything change under the new regulations?

by bregs blog admin team

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An initial €10 million of funding has been announced by the Government to repair homes damaged by pyrite. (Journal.ie 16/10/13). Pyrite damaged homes are being rectified at taxpayer expense because there’s no ready system of redress for homeowners.

Although the stated objectives of the new regulations is to provide “traceability and accountability at all stages of the building process” (Minister Hogan 04/04/13), the consumer will be no-better off under the new regulations. A modified system of self-certification will continue and where the assigned certifier cannot be found, or the action for negligence fails , or the certifier no-longer has the means or the insurance to rectify the problem; it may be up to the taxpayer to once again step in and provide redress.

The best time to identify defects and remedy problems is during the construction, through a system of independent inspections. In 2012 The Pyrite Panel reported on the reasons for the failure to prevent defective material (containing pyrites) and recommended that “the system of independent inspections, carried out by the building control officers, should be strengthened to complement the mandatory certification process for buildings”

In the event of ‘latent’ defects (defects that are not evident or have not developed at the time that the building is complete) a mandatory system of Latent Defects Insurance would give the building owner immediate redress for pyrites and other hidden problems without having to go to court. From the Pyrite report: “More generally, from a public policy perspective, systems should be put in place that would provide protection for the public, in the case of urgent and serious problems (such as occurred in relation to pyrite in dwellings), without having to resort to prohibitively expensive, time-consuming and uncertain legal actions having to be taken by individuals.”(The Pyrite Panel Report 2012)

Commissioned by the government, The Pyrite Report Panel carried out a thorough investigation into the problem of pyrite in homes and completed its report in 2012. The report was endorsed by the government and published. If SI80 (the proposed amendment to the regulation) is a response to the problems of Pyrite in homes, it is remarkable that one of this report’s key recommendations: independent inspections by local authorities, is not an integral part of the proposed changes.

Download the 2012 Pyrite Report Here

What is Pyrite? 

Surveyors welcome €10m Pyrite Remediation Scheme Pledge but say the problem is not over. See SCSI press release here

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