Author: Cormac Bradley BSc CEng FIEI MICE, construction manager, RPS Group (Ireland) Since my original piece on Building Control Amendment Regulations, or BC(A)R, and the role of the assigned certifier, readers of EngineersJournal.ie will have had the benefit of further insight on the implications of the new regime of building control from two other commentators – Mr Eoin O Cofaigh and Mr Jack Kavanagh. Ms Mairead Phelan has also written a piece from the perspective of the BCAs in the context of explaining the Building Control Management System (BCMS). This final piece of commentary on BC(A)R is primarily an attempt to address some of the issues that the first two commentators have with the new system. In writing this piece, I have also had a section of the article reviewed by a well-respected practitioner in the insurance sector to make sure that my opinions were correct. It would be improper of me to suggest in any way that any of the other authors are wrong in their views, especially when they have placed so much emphasis on (senior) legal opinions, but I do feel that they may have missed the essence and certainly the intent of the new Regulations and the associated Code of Practice. They are also correct that the legal system may well have a different interpretation compared to our ‘coalface practitioners’ but, clearly, it would be preferable to avoid a lesson with that sort of cost.

Self-certification versus independent inspection regime

Given a choice, which would you prefer – an independent inspection system where the responsibility for every last detail, to paraphrase Mr O Cofaigh, would lie with the independent inspector for the building control authority (BCA), or a self-certification system? It may well be the case that the majority of the 500 submissions to the Department of Environment, Community and Local Government (DoECLG) advocated an independent inspection regime, but the reality, uncomfortable as it is, is that neither the DoECLG nor the BCAs have the resources (personnel or monetary) to put in place an independent inspection system. Given an unlimited budget, we would all go out and buy a car that would normally be beyond our means, but very few of us get to make those sorts of choices, so the reality is that we end up buying what we can afford. By making this analogy, I am not trying to belittle the implications for the consumer that Mr O Cofaigh is conscientiously trying to protect, but it is the reality of where we found ourselves. In that situation the participants could have simply walked away, which would be irresponsible. Instead, we have tried to put in place a self-certification system that relies on interdisciplinary reliance between the different project parties – the building owner, the builder, the architect, the engineer and, contrary to one of Mr O Cofaigh’s assertions, the BCAs – so that if something does go wrong, there is a traceability system that allows the investigation of what went wrong to be more swiftly undertaken. Further, the suggestion that the new regime of building control will simply improve the quality of paperwork but do nothing for the quality of building is a short-sighted view and chooses to ignore the revised implications for builders under the CIRI (Construction Industry Register Ireland) by the Construction Industry Federation (CIF), the role of ancillary certifiers and their certification of design and inspection, and the ancillary certificates that are now required to be completed by builders. It also chooses to ignore the intended and certifiable interaction between the various design disciplines in developing the design, implementing it on site and having builders sign up to a declaration that the design as delivered to site, by way of drawings, specifications and, where appropriate, their own input to the design process so that the end users or occupiers can have an assurance that they get the deliverables they expected. To suggest that any inspection regime, whether independent or self-regulated, will improve building standards by paper alone is facile. It should also be emphasised that the self-regulation ethos is not a case of me regulating myself alone, but in tandem with others in the design team. While I accept that an independent inspection system may have more teeth in policing errant practitioners, surely signing a declaration that work has been carried out according to required design codes, best practice, ethics, client requirements, inspections, design drawings (or approved revisions to original design drawings) with the prospect of BCA oversight and enforcement notices is an acceptable alternative.

The ‘death knell’ of self-build projects

Again, I would take issue with Mr O Cofaigh that the BC(A)R regime will be the death knell of self-build projects. Former Environment Minister Phil Hogan himself stated publicly that this was not the case (I happened to hear him make this statement on radio). However, what the self-builder must now embrace is the idea that as a sole entity, taking on multiple roles, will have to be more carefully managed. The new regime of building control means that mandatory appointments now need to be made by the building owner. Given that appointing oneself to a variety of roles within the project regime heightens the risk analysis applied by the relevant BCA, a self-builder might be advised to make sure that at least one other role of the mandatory roles to be declared in terms of these Regulations is filled by another person qualified to take on that role. While this concern for the self-builder may be based on the potential demise of this activity, the implications for design and construction compliance are heightened when one person is taking on multiple roles. Elsewhere, both Mr O Cofaigh and Mr Kavanagh express concern over the situation where the assigned certifier is appointed by the builder and the consequent compromise in the independence of the assigned certifier, their concerns should equally apply to the self-builder. Can one individual acting as assigned certifier refuse to sign off on works that s/he also undertook as builder? Originally, I was of the view that this ‘one is all and all are one’ philosophy of self-build only had an implication if the project was being built for immediate or future sale to an unnamed third party, but I was corrected to be made aware that even if the building was for ‘own use’, there are immediate implications for occupancy.

De facto control of building projects

The new Regulations require the appointment of identified professionals to specific roles. Thus, chartered engineers, registered architects and registered building surveyors are the only professionals who may be appointed to the roles of assigned certifier and design certifier. I do not understand how this equates to the yielding of control of building projects to this particular group. I would suggest that: a) The building owner has an enhanced role; b) The builder has a changed and enhanced role; c) The BCA has a very definite role and is very definitely NOT the ‘Cinderella’ of the ball; d) The new roles of assigned certifier, design certifier and two categories of ancillary certifiers have been introduced; e) The self-build community has not been banished from the sector. What these Regulations do put in place is an enhanced requirement for the various parties to interact with each other to ensure that the project is executed in accordance with the requirements of the Regulations and the associated Code of Practice. How, then, can this be considered to be a relinquishing of control over building projects by the BCA and building owners? Colloquially, there is no doubt that the ‘two Ps’ – pyrite and Priory Hall – were drivers in the initiative to revise the Building Control Regulations. They were not the exclusive drivers for the initiative, however. Former Minister Hogan’s officials made it very clear that there was a need to revise the Regulations in the context of improving building standards. And while the recommendations of the Pyrite Panel were not specifically cited, there are separate initiatives that do look at materials management. The Construction Products Regulations bring a much enhanced responsibility for the proper use of materials and the CE marking of such materials into the sector. I would suggest that the CPR and the BC(A)R suites of regulations overlap and are mutually supportive.

Who is signing for what?

Mr O Cofaigh makes a statement in his article, “So the assigned certifier ‘signs off on behalf of the builder’”, quoting Mr Tom Parlon of the CIF. Both gentlemen may have misinterpreted the requirements of the certification. Consider two scenarios! 1. Certificate of Compliance on Completion Two signatures are required for this Certificate – that of the builder and that of the assigned certifier – for Parts A and B respectively. Without both these signatures, this Certificate is invalid and canot be processed by the BCA. So it is not the case that the assigned certifier signs off on behalf of the builder; the assigned certifier signs for one aspect of the project undertaking, the builder for another, separate and different undertaking. 2. Ancillary Certificates These may be prepared by individuals for the design and inspection of works and the persons so appointed may be drawn from architects and architectural technologists/technicians, consulting engineers, designers appointed by the builder to design and certify, other competent technical and trade persons, the builder, sub-contractors, suppliers and manufacturers both in relation to certifying design and construction. Ancillary certifiers are not specifically required to be drawn from the three categories of professionals from which the assigned certifier and design certifier are drawn. Therefore, the suggestion that the builder can remain silent while somebody else certifies on his/her behalf is not mirrored in either the Regulations, the statutory forms or in the Code of Practice.

Professional indemnity, latent defects insurance and liability

As both Messrs O Cofaigh and Kavanagh have advised, the insurance and liability issues associated with the BC(A)R regime are the most concerning aspects of this initiative. Due to the fact that the assigned certifier and the design certifier are appointed in their individual capacities and may not be company appointments, there has been much discussion on what this means for the individuals concerned. Concerns have been expressed about the implication for the individual who takes on the role of assigned certifier or design certifier, but the position on personal liability has yet to be tested and in the case of ancillary certifiers, the certificates are signed by a principal or director of the company. However, as advised by an expert on the subject (in a review of this article), the potential for personal liability is nothing new and has always existed for those operating in a professional capacity. Additionally, it is recommended that companies operating in the building sector should ensure that they have set their own internal requirements for those employees who take on the roles of assigned certifier, design certifier or ancillary certifier, particularly where the individuals and the company are reliant on the corporate PII to cover their internally approved appointments. One view, espoused by Messrs O Cofaigh, Kavanagh and others, is that by accepting the appointment the individual is signing up to a lifetime of fear of litigation. Again, on the basis of the review of this article, practitioners are reminded that certificates will be subject to the usual time limitations that would apply to any actions under Tort. Accordingly, a more comforting view is that provided the appointments are made with the specific and confirmed consent of the individual’s employer, in the case of an employee, the actions of the individuals in discharging their responsibilities should be covered by their employer’s PII. I would take issue with the suggestion that an assigned certifier would agree to act in this role ‘to facilitate his/her employer’. This is an example of placing the cart before the horse. No individual should take on the role simply to accommodate his employer. An individual who is approached to take on this role is doing so on the basis of expertise, competence and seniority. The request to consider taking on the role may be prompted on the basis of a previous working partnership, on the recommendation of another member of the project team (and in this context I mean the project design team), or by enquiry to Engineers Ireland, the RIAI or the Society of Chartered Surveyors Ireland. The building owner makes these appointments (under guidance one assumes) not the individual’s employer. And there is no requirement that the assigned certifier be recruited from the same source as the project team. Thus, for example, an assigned certifier from Arup could be appointed to a project where the design team is from RPS. This is at the discretion of the building owner, who may take advice from his/her other project appointees. The assigned certifier appointment is made by the building owner, using the statutory documentation that is incorporated into the SI and is also available on the BCA’s website via the Building Control Management System. The Code of Practice requires the appointees to act independently but with regard to the other members of the project team. And should that independence be compromised, the assigned certifier may resign from that position with written notification to the BCA. The legal fraternity are equally divided on this issue, along the same lines. In recent seminars hosted by Engineers Ireland and by others, both views have been conveyed to attendees. A leading practitioner in the insurance sector has recommended that where employers are prepared to let employees take on these roles, companies should advise their insurers accordingly and ensure that the definition of ‘insured’ under their policy covers employees and former employees for work undertaken on behalf of their employer. He has also advocated that insurances should be considered with long term considerations in mind not short-term hedging. The activities required of appointees to a project; design, inspection, interaction with other design and construction professionals, answerability to a client and liaison with statutory authorities have not dramatically changed between the pre 1 March and post 1 March 2014 periods. And Mr O Cofaigh’s assertion that the number of Commencement Notices “has tumbled” in 2014 compared to last year due to the inferred discomfort of professionals with the new obligations is not reflected in the growth of the number of Commencement Notices on the BCMS since 1 March 2014.

Commencement Notice stage

Hopefully, there should not be a dramatic change in the levels of liability associated with the execution of a project, mitigated by an increased undertaking to improve compliance. That is why the new Regulations place such an emphasis on submitting mandatory information at Commencement Notice stage, complementing it with a declaration as to what additional information will be submitted during the construction stage, providing an inspection plan to the BCAs and ensuring that all information promised is submitted to the BCA in advance of the Certificate of Compliance on Completion. If these ambitions are met and are properly managed, there should be no reason for a BCA to delay the processing of a Certificate of Compliance on Completion. Regular communications between the assigned certifier and the BCA will also help to ensure that there are no last minute glitches with the processing of this Certificate. Messrs O Cofaigh and Kavanagh are correct in suggesting that PII is not the answer to all liability exposure, but what the more calm-headed commentators are saying is that if we continue to apply best practice and are able to show how we have executed our responsibilities on a project it will be possible to mitigate the exposure to litigation. Discussion with the building owner and finalising how we will discharge our responsibilities and agreeing a contract to that effect can be another way in which the exposure to litigation can be mitigated for claims between these contracted parties. The prospect of latent defects insurance (LDI) was championed during the consultation process by the RIAI and enjoyed the support of Former Minister Hogan. This is a model of insurance that allows rectification works to be initiated while the investigation as to why the failure occurred is investigated. This has the advantage of allowing the remedial works to be started earlier rather than only when the responsible party is definitively identified and their PII insurance enacted. It is a model that has been pioneered in Australia but its application in the context of BC(A)R has yet to be realised here. An LDI insurance policy pays for rectification on proof of damage rather than proof of fault so, initially at least, responsibility for the fault is of secondary importance, although ultimately, the LDI Insurers may well seek to recover their loss from such parties. It should be noted that LDI has been around for a while. The concept is considered to be good and cover is generally broader that what is usually afforded under home warranties, but it should not be considered as a ‘catch-all’ solution. Elsewhere in this article, I have made reference to the recommendation to put in place insurance arrangements for the longer term rather than short-term hedging. At the same construction law briefing where this particular advice was offered, another concept was put to the audience – the prospect of project specific insurance – where all the parties to a particular project collectively contribute to putting in place insurance cover for the project, rather than bringing their own individual insurances to the project. From a non-expert viewpoint, this might mean that project insurance could be proportioned in accordance with risk exposure or value of work to the individual project. Contrary to Mr O Cofaigh’s sentiments on these new roles in the project team, ancillary certifiers are a key element in the system. They are ‘coalface designers’, inspectors on behalf of the designers, can prepare certification on behalf of the builders and are the individuals on whom the assigned certifier relies in order to show project compliance with the Building Regulations. They provide the key elements of the system of certification that will ultimately allow the assigned certifier to progressively upload documentation to the BCMS and prepare the Certificate of Compliance on Completion.

Conclusion

The comments and views of Messrs O Cofaigh and Kavanagh are welcomed because they afford the audience to which they were directed a different perspective on how the BC(A)R will affect design and construction professionals, but I am of the view that both authors have made assumptions that are not consistent with what the Regulations and Code of Practice say. Though more difficult to defend, neither do they reflect the intent of those who directly involved in the consultation process. An independent system of building inspection was a non-starter so there is no point in dwelling over what might have been – no matter how desirable. The ‘self-certification’ system that has been put in place is meant to reflect the requirement that members of the project team are accountable for their own work and activities to confirm that their work has been correctly implemented on site. The builder is also required to make similar declarations. Accountability promotes traceability and transparency which should aid investigation in the case of a failure. An inspection regime, either self-employed or independent does not of itself promote better building but an enhanced sense of accountability would be a first step towards that ambition. Better building promotes a greater assurance for the end user or client. Liability was an issue pre 1 March 2014 and remains post 1 March 2014. It has not gone away, but increased liability for the professionals is still a consequence of not doing the work correctly, or in accordance with the undertaking given to your client, or making statements that are proven to be maliciously incorrect and in that regard design professionals and builders who can comprehensively show that they have undertaken their responsibilities seriously and correctly should not find themselves operating under dramatically different circumstances since 1 March 2014. Impoved compliance should reduce the overall claim numbers as building standards improve. This is the advice that we should be offering to our professional colleagues, not scaring the living daylights out of them by suggesting that BC(A)R is a recipe for litigation disaster. Where individuals are asked to take on the roles of assigned certifier and design certifier or ancillary certifier, and they are employees, they need to ensure that they do so on the basis of approval by their employer so that they are covered for their actions by their employer’s PII. To do otherwise would be poor practice. The ancillary certificates are ‘signed off’ by a principal or director of the company for whom the person who prepared the certificate works. This too, is not a radical departure from past practices. Additionally, it removes the suggestion that design, in particular, will be undertaken without the supervision of a professional engineer. How companies decide to allow employees to take on the roles of assigned and design certifier must be a subject for internal consideration taking into account competence, experience and qualifications. As an institution, Engineers Ireland cannot mandate regulations for private companies to appoint assigned and design certifiers. These revised Regulations are not the death knell of self-build projects. However, for those who wish to undertake self-build projects they need to be very circumspect about how they discharge the responsibilities of building owner, builder, assigned certifier and design certifier. These roles do not disappear because it is self-build. Footnote SI No.9 of 2014 came into effect on 1 March 2014. As of 3 December 2014, the statistics from the BCMS are as follows: 
Web-submittedCommencement Notices Over the CounterCommencement Notices
Valid 3441 852
Invalid 546 81
Total 3987 933
Some 70,000 documents have been uploaded to the BCMS (statistics kindly provided by Mairead Phelan, Fingal County Council and BCMS development project manager).