Building Control Regulations - key features for engineers

Author: Jarleth Heneghan, partner and Cassandra Byrne, senior associate, both of William Fry

New building control legislation in Ireland is likely to profoundly change the construction and projects industry for many years to come. How will this impact engineers? In such cases, the Commencement Notice and the Seven-Day notice must now be accompanied by:

Outline Plans and Documentation – general arrangement drawings, plans, sections and elevations, calculations and specifications necessary to outline how the proposed works or building complies with the requirements of the Building Regulations;
Certificate of Compliance (Design) – a certificate (in prescribed form) to be completed by a design professional (the design certifier), confirming that: it has been commissioned by the owner to design, in conjunction with others, the building or works and inspect as appropriate; it is competent to carry out the design and to coordinate the design of others; and the plans and other documents have been prepared by it and the other design professionals (exercising reasonable skill, care and diligence) to demonstrate compliance with the Building Regulations. The design professional must also certify that the design for the building or works is complies with the Building Regulations.
Certificate of Compliance (undertaking by assigned certifier) – a certificate (in prescribed form) to be signed by the assigned certifier, such as a chartered engineer, undertaking to use reasonable skill, care and diligence to inspect the building or works and to co-ordinate the inspection of others and further undertaking to certify, following the implementation of the inspection plan, compliance with the Building Regulations. The assigned certifier may rely on specialist works contractors for ancillary completion certificates for inclusion with the Certificate of Compliance on Completion although must satisfy themselves as to certification provided by such specialists.
An assigned certifier must be named on prescribed registers (including that under Section 7 of the Institution of Civil Engineers of Ireland (Charter Amendment) Act 1969). Currently, there is no mandatory registration system for builders, but this on the horizon for introduction. Consideration should be given as to whether the assigned certifier should be an independent professional and/or contained in a separate appointment. While generally this can be a single appointment, it is recommended under the Capital Works Management Framework Contracts that in a contractor-designed public works contract, it would not be appropriate for the design certifier to be the same service provider as the assigned certifier.
Preliminary Inspection Plan (including the Inspection Notification Framework).
Certificate of Compliance (Undertaking by Builder) – a certificate (in prescribed form) to be completed by the builder confirming that it has been commissioned by the owner to build and supervise the works and that it (and any employee or other person engaged by it) is competent to do so. Builders should also be mindful of obtaining necessary ancillary certificates. The builder must also undertake to: construct the works in accordance with plans and other documents detailed in the Commencement Notice/Seven-Day Notice; co-operate with the inspections carried out pursuant to the inspection plan; and certify the works comply with the Building Regulations.

The Building Control (Amendment) Regulations 2014 (the Regulations), which came into effect on 1 March 2014, will affect how public and private sector projects are run and how stakeholders, ranging from engineers, other design professionals, owners, builders to building control authorities respond to the challenges ahead.

Publication of the Regulations follows recent consultation with industry stakeholders ranging from Engineers Ireland, the Construction Industry Federation, Royal Institute of the Architects of Ireland, and Society of Chartered Surveyors Ireland. This highlighted the real need for a more robust building control regime, appropriate certification and led eventually to revoking Building Control (Amendment) Regulations SI 80 of 2013 before its introduction and the making of the Building Control (Amendment) Regulations 2014 (SI No 9 of 2014) (the Regulations). Both the Regulations and its accompanying Code of Practice are available here.

The Regulations are to be read in conjunction with existing building control legislation. Even though it is unclear from the Regulations, the Department of the Environment, Community and Local Government has confirmed that if a valid Commencement Notice is received on or after 1 March 2014, the new building control regime (as introduced by the Regulations) will apply. There are two roles identified in the Regulations in which engineers could be involved: design certifier and assigned certifier.

COMMENCEMENT NOTICE AND SEVEN-DAY NOTICE

The form of Commencement Notice and Seven-Day Notice has been revised and is to be signed by the owner of the works. Significant changes have been made to documentation to be submitted with Commencement Notices/Seven-Day Notice where the works comprise:

design and construction of a new dwelling;
extension to a dwelling involving a total floor area greater than 40 square metres;
works to which Part III of the Building Control Regulations 1997 to 2014 applies.

In such cases, the Commencement Notice and the Seven-Day notice must now be accompanied by:

Outline Plans and Documentation – general arrangement drawings, plans, sections and elevations, calculations and specifications necessary to outline how the proposed works or building complies with the requirements of the Building Regulations;
Certificate of Compliance (Design) – a certificate (in prescribed form) to be completed by a design professional (the design certifier), confirming that: it has been commissioned by the owner to design, in conjunction with others, the building or works and inspect as appropriate; it is competent to carry out the design and to co-ordinate the design of others; and the plans and other documents have been prepared by it and the other design professionals (exercising reasonable skill, care and diligence) to demonstrate compliance with the Building Regulations. The design professional must also certify that the design for the building or works is complies with the Building Regulations.
Certificate of Compliance (undertaking by assigned certifier) – a certificate (in prescribed form) to be signed by the assigned certifier, such as a chartered engineer, undertaking to use reasonable skill, care and diligence to inspect the building or works and to co-ordinate the inspection of others and further undertaking to certify, following the implementation of the inspection plan, compliance with the Building Regulations. The assigned certifier may rely on specialist works contractors for ancillary completion certificates for inclusion with the Certificate of Compliance on Completion although must satisfy themselves as to certification provided by such specialists.
An assigned certifier must be named on prescribed registers (including that under Section 7 of the Institution of Civil Engineers of Ireland (Charter Amendment) Act 1969). Currently, there is no mandatory registration system for builders, but this on the horizon for introduction. Consideration should be given as to whether the assigned certifier should be an independent professional and/or contained in a separate appointment. While generally this can be a single appointment, it is recommended under the Capital Works Management Framework Contracts that in a contractor-designed public works contract, it would not be appropriate for the design certifier to be the same service provider as the assigned certifier.
Preliminary Inspection Plan (including the Inspection Notification Framework).
Certificate of Compliance (Undertaking by Builder) – a certificate (in prescribed form) to be completed by the builder confirming that it has been commissioned by the owner to build and supervise the works and that it (and any employee or other person engaged by it) is competent to do so. Builders should also be mindful of obtaining necessary ancillary certificates. The builder must also undertake to: construct the works in accordance with plans and other documents detailed in the Commencement Notice/Seven-Day Notice; co-operate with the inspections carried out pursuant to the inspection plan; and certify the works comply with the Building Regulations.

CERTIFICATE OF COMPLIANCE ON COMPLETION

Before works or a building (to which the Regulations apply) can be opened, occupied or used, a validly completed Certificate of Compliance on Completion is required to be validated and registered on the statutory register maintained by the relevant building control authority. Certifiers must possess sufficient training, experience and knowledge appropriate and knowledge appropriate to the nature of the work to be undertaken.

This mandatory Certificate of Compliance on Completion must be signed by the builder and the assigned certifier; accompanied by such plans and other documents which outline how the completed works or building differ from the plans and other documents submitted with the Commencement Notice/Seven-Day Notice and comply with the Building Regulations; and the Inspection Plan as implemented.

The Regulations include separate timelines (mandatory and discretionary) within which the building control authority must respond as to validity or invalidity of a Certificate of Compliance on Completion. There is automatic inclusion on the Register is no queries are raised within 21 days.

A statutory Code of Practice for Inspecting and Certifying Buildings and Works has been published to provide guidance on inspecting and certifying works. Compliance with the Code of Practice will, prima facie, be taken as compliance with the relevant requirements of the Regulations.

BUILDING CONTROL MANAGEMENT SYSTEM

The Regulations introduce electronic filing through a Building Control Management System as the preferred means of building control administration. The building control authority can levy charges for scanning and uploading hard copy documents to the Building Control Management System. It will operate via www.localgov.ie and the building control authority website. Engineers will need to become familiar with using this system.

Failure to comply with the Regulations is an offence which may result in the imposition of fines and/or imprisonment, together with potential liability in contract and/or tort. Where the engineer as assigned certifier changes this needs to be notified to the building control authority this is also likely to lead to certain complications and potential delays. Engineers will need to be mindful on how to best manage their liability to and for clients and third parties.

The increased responsibility and change in risk-profile for builders, design professionals and owners, under the Regulations is likely to necessitate additional insurances in certain circumstances, such as professional indemnity insurance for contractors. For engineers who typically maintain such insurances, they should confirm that their insurance cover captures their new obligations under the Regulations, be mindful of the insurances being maintained by ancillary certifiers and consider run-off cover implications.

CONCLUSION

The details and nuances of Regulations will need time to bed down, be further refined over time and supplemented by training. The Regulations will also potentially increase costs on project administration, programming and insurances. Further engagement will be needed with the key participants, including engineers.

However, it is hoped that the Regulations will play an important role in the pursuit of an improved culture of building control with an increased focus on care and safety in the construction industry. The Regulations highlight the new roles and increased responsibilities for engineers. Parties should therefore seek advice how their contracts best address the requirements of the Regulations going forward.

Jarleth Heneghan, partner (FSCSI, FRICS, MCIOB, FCIArb & Solicitor) and Cassandra Byrne, senior associate (FCIArb & Solicitor), both of William Fry, law firm in Dublin