Regulations must be enforced to ensure better quality construction

Hugh Cummins BA, BAI, MIEI, associate solicitor, Projects, Construction and Energy Unit, Philip Lee Solicitors The Building Control (Amendment) Regulations 2013 (S.I. No. 80 of 2013) were signed into law on 8 March by Phil Hogan, the Minister for the Environment, Community and Local Government. The Regulations update the Building Control Regulations, 1997 (S.I. No. 496 of 1997), as amended, and will come into effect on 1 March 2014. According to Minister Hogan, the one of the primary aims of the Regulations is to provide a “key consumer protection measure”, which will, “for the first time, give home-owners clarity, traceability and accountability at all stages of the building process”. The Regulations will apply to: (a) the design and construction of new dwellings; (b) extensions to existing dwellings involving a total floor area greater than 40 square metres; and (c) works to which Part III (Fire Safety Certificates) of the 1997 Regulations applies (which includes, amongst other things, works in connection with the design and construction of a new building, certain works in connection with the material alteration of buildings such as hotels, shopping centres, offices and industrial buildings, works in connection with the extension of a building by more than 25 square metres and buildings where a material change of use takes place). The Regulations will impose greater responsibilities on building owners. In addition to signing and submitting Commencement Notices and Seven-Day Notices prior to commencing works as before, building owners are now under a duty to notify the Building Control Authority of their appointment of a competent builder and competent inspector (assigned certifier) of the works. [login type="readmore"] If the identity of those professionals changes during the works, the building owner is also obliged to notify the Bulding Control Authority of such change. The building owner is to satisfy itself as to the competency of the professionals it appoints to carry out those roles and makes a statement to that effect on the relevant notices of assignment to the Authority. COMMENCEMENT The Regulations introduce the requirement for Commencement Notices and Seven-Day Notices to be accompanied by “such plans, specifications and particulars as are necessary to demonstrate how the proposed works will comply with the requirements of the Second Schedule of the Building Regulations”, together with the following notices and certificates:

Certificate of Compliance (Design);
Notice of Assignment of Person to Inspect and Certify Works;
Certificate of Compliance (Undertaking by Assigned Certifier);
Notice of Assignment of Builder; and
Certificate of Compliance (Undertaking from Builder).

These notices and certificates will permit the Building Control Authority to maintain a record of the parties assigned by the building owner to design the works in question as well as act as builder and assigned certifier of the works. Under the Certificate of Compliance (Design), the building owner’s architect, engineer or building surveyor (as the case may be) certifies that the proposed design of the works will comply with the relevant provisions of the Building Regulations. Under the Certificate of Compliance (Undertaking by Assigned Certifier), the assigned certifier undertakes to inspect the works with reasonable skill, care and diligence and prepare an inspection plan for the works. Under the Certificate of Compliance (Undertaking from Builder), the builder undertakes to construct the works in accordance with both the Building Regulations and the plans, calculations, specifications and other documents accompanying the Commencement Notice. CONSTRUCTION AND INSPECTION During construction, the assigned certifier will inspect the works and co-ordinate the inspection of the works by others and shall implement the inspection plan (which must be delivered up to the Building Control Authority on completion, as noted below). Under the Notice of Assignment of Person to Inspect and Certify Works, the building owner states that any information requests by the Authority are to be directed to the assigned certifier. However, the assigned certifier’s undertaking is silent on whether they are to respond to such requests. It will be interesting to see if this obligation is contained within the Code of Practice for Inspecting and Certifying Building Works, which has yet to be published, but is expected in the coming months. Whilst the builder is under an obligation to construct the works in accordance with the Building Regulations and plans, specifications and other documents submitted (and has given an undertaking to do so), they are also undertaking to co-operate with the on-going inspections as set out in the inspection plan prepared by the assigned certifier. Upon completion of any works to which the Regulations apply, there is now a requirement to submit a Certificate of Compliance on Completion, together with a copy of the inspection plan implemented by the assigned certifier. These documents must also be accompanied by any plans, specifications and other documents which differ from those previously submitted with the Commencement Notice/Seven-Day Notice. This certificate is jointly provided by the builder and the assigned certifier. The builder certifies that the works have been constructed in accordance with the plans, specifications and other documents originally submitted with the Commencement Notice/Seven-Day Notice and any further plans, specifications and documents as may have been submitted to the Building Control Authority during the course of the works. The assigned certifier certifies that the inspection plan has been implemented in accordance with the Code of Practice for Inspecting and Certifying Building Works or equivalent. ROLE OF BUILDING CONTROL AUTHORITY The Authority will now have greater access to information at all stages of any works to which the Regulations will apply. However, the Regulations do not impose any significantly greater obligations on the Authority than before. Ultimately the responsibility for the works will always rest between the building owner, the designers, the builder and the assigned certifier. The Authority will assess the validity of the submitted Certificate of Compliance on Completion. It should be noted, however, that this is not a technical assessment, approval or factual evaluation of the documents submitted, but is simply an assessment of whether the certificate itself is in compliance with the Regulations. Where the Authority accepts the validity of the Certificate of Compliance on Completion, it must enter the particulars accompanying the certificate on the relevant information register (which they are obliged to set up and maintain under the Regulations) and notify the person submitting the certificate that this has been done. Where the Authority rejects the validity of a Certificate of Compliance on Completion, it must notify the person who submitted the certificate in writing, giving reasons for such rejection and requiring them to submit a revised certificate or furnish any additional information as the Authority may require. It is important to note that a valid Certificate of Compliance on Completion must be entered on the relevant register before the building in question can be “opened, occupied or used”. Failure to comply with this or the other requirements created by the Regulations shall be deemed to be an offence under S.17(2) of the Building Control Act, 1990 as amended by the Building Control Act, 2007. That section states that a person found guilty of an offence on summary conviction shall be liable to a fine of up to €5,000 or imprisonment up to six months or both, or if convicted on indictment, a fine of up to €50,000 or imprisonment up to two years or both. CONCLUSION The new procedures set out in the Regulations should have the effect of creating greater transparency for future owners of relevant buildings, by virtue of the information register being created and maintained by the Building Control Authority. Whilst the Authority will have greater oversight of the building process under the Regulations, it is perhaps disappointing that it remains free of any responsibility for directly controlling the quality of building. This still rests entirely with the building owners and their design and construction teams. The hope will be that there will be a greater level of accountability from the parties involved in carrying out any works on foot of the written undertakings being provided. However, this will be of little or no impact if the Regulations are not strictly enforced and those found to be in breach are actually held accountable in the courts. Whilst the intentions behind the Regulations are to be applauded given Ireland’s track record of poor quality construction, particularly in times of high demand for new builds in the residential sector, some may argue that it may be too little too late at this stage. Given the low level of activity in the construction industry at this moment, it may be some time before the effects of the Regulations are actually seen in practice, but they must be seen as a step in the right direction towards better quality future building construction in Ireland. Hugh Cummins (BA, BAI, MIEI) is an associate solicitor in the Projects, Construction and Energy Unit of Philip Lee Solicitors in Dublin. He is an engineering graduate from Trinity College Dublin and is a member of both Engineers Ireland and the Law Society of Ireland. Contact: hcummins@philiplee.ie.