KEVIN HOLLINGSWORTH outlines serious deficiencies in proposed changes to building control legislation.

A change to the way in which the building control system in Ireland is administered has been needed and requested by all property professionals for a considerable time. The Building Control (Amendment) Regulations 2012 is the Department of the Environment, Community and Local Government’s attempt to attend to the deficiencies in the current system, and is widely regarded by property professionals to be ill-conceived, uninsurable and unworkable.

So great is the concern regarding this Act, that prior to making the Society’s submission to the Department on the specifics of the legislation, the Society, the Royal Institute of Architects of Ireland, the Construction Industry Federation and the Association of Consulting Engineers in Ireland met and wrote a joint letter raising our concerns and requesting an extended consultation period and further round table discussions on the matter.

A parallel process for the preparation and agreement of the proposed code of practice referred to in the draft legislation should also be undertaken during the extended public consultation period, so that the code of practice can be in place prior to finalisation of certification requirements envisaged under the draft amendment regulations. Not having a completed code of practice prior to endorsing new mandatory inspection and certification obligations is inconceivable and unworkable.

Why the proposed legislation doesn’t work

Some of the specific issues regarding the legislation are outlined below:

  • The legislation requires full design drawings to be submitted at Commencement Notice. Full sets of detailed construction drawings are not and will not be available at Commencement Notice stage. The construction detail of many building elements is not finalised at Commencement Notice stage, nor is it practical to suggest that they can be finalised at this stage.
  • The current draft legislation does not allow for partial/phased completion certificates. Many buildings are completed to shell and core stage and then handed over to a prospective tenant or new owner to undertake their fit out. The legislation needs to account for this common occurrence in the construction industry.
  • Mechanism for Change of Inspector/Certifier for Project must be included in the legislation or code of practice. Even with the best will in the world, sometimes a change may be necessary due to accident, illness or disagreement. A mechanism must be established that will enable the appointment of an alternative certifier for a development, and specifiy how any new appointee can carry on the work of the previous certifier.
  • Domestic extensions are currently exempt under this draft legislation. Domestic work will most likely form a considerable sector of the construction industry for some time and the general public are the people who require most protection. We believe that any regulations should cover all construction work over carefully considered minimal thresholds and not just new buildings.

Certificate of Compliance

Of greatest concern to would-be certifiers is the statement on the draft Certificate of Compliance (at both Design and Completion stages):

“I certify… that the proposed design/building or works as completed is/are neither defective nor contravene any requirements of the Second Schedule of the Building Regulations”.

This statement implies strict liability, which is unworkable and uninsurable. If any registered surveyor, architect or chartered engineer signs a certificate with this statement included, he/she is stating that they have inspected all sections of the works. This means that they must be present at all times to ensure that there are no defects in the works. This will result in a massive cost to any client. It is also highly unlikely that any professional indemnity policy would cover such a far-reaching scope, and if it did it would most likely cost more than the building is worth.

As stated in our previous submission on The Building Control System Review and Recommendations 2011, milestone inspections will need to be undertaken by the certifier, such as:

  1. Prior to pouring foundations.
  2. Prior to pouring the ground floor slab.
  3. Upon reaching wall plate level.
  4. Prior to lining/closing up the walls internally.
  5. Upon completion of finishes.

On completion of the works, a Certificate of Compliance will be issued and should include the following:

  • Fire Safety Certificates: inspection by the fire safety consultant who prepared the Fire Safety Certificate application should be required during the construction stage, and sign-off when construction is complete;
  • Air Tightness Certificate; and,
  • BER Certificate.

Conflict of interest and local authority involvement

The proposed new building control system also retains one major flaw from the current one: conflict of interest. The building owner will still be the paymaster of the certifier. This is an inherent flaw of any such self-certification system. On a similar point, throughout this legislation there is one notable absence: a strong role for the local authority apart from as a recipient of information. At present the building control officer is only required to inspect 15% of developments. It is a common perception among professionals that this requirement is not met, and it is hard to see how it could be met with some local authorities only retaining one employee to act as building control officer on a job share basis, e.g., half an employee.

We propose that building control officers should have a far greater role, carrying out, on up to 100% of developments, at least one of the milestone inspections. The cost of this could easily be borne by a reasonable increase in the Commencement Notice charge.

Having a building control system without an active role for the building control officer is not wise. There are some things that a government should retain an active role in, and ensuring that the inhabitants of the nation have safe and functional buildings is one of them. It is not a coincidence that the move away from the days of the bye laws inspections to self-regulation has coincided with the drop in the standard of construction.

The Society has now submitted its view on the draft legislation to the Department of the Environment, outlining the above and other views in more detail. Following on from this, the Building Surveying Professional Group will also be making a separate submission on recommendations to the Central Bank that they should compel all lending institutions to ensure that all of their lenders comply with any new building control legislation. In my opinion it is essential that the purse strings of this country play a leading role in building better homes and a better future for the people of this country.

Kevin Hollingsworth
Kevin is a Chartered Building Surveyor with
McGovern Surveyors and Chairman of the Building
Surveying Professional Group of the Society of
Chartered Surveyors Ireland.