‘Living over the shop’ should be part of the solution to our housing crisis, but a regulatory minefield makes it difficult to make projects work.

The ongoing widespread demolition of relatively modern office buildings to make way for contemporary
replacements in and around Dublin City points to an early obsolescence that makes one question the viability of this form of development. The environmental impact of the demolition of buildings, and the carbon footprint created when replacing buildings, should be added to any cost–benefit analysis.
As far back as 2004, Dublin City Council, in association with the Heritage Council, published its very interesting ‘Built to Last’ document. This document analysed five projects and compared full replacement cost with refurbishment cost. The result ran contrary to a widely held belief that full replacement of buildings can be more economical. In fact, the report concluded that where high levels of “conservation works” were not needed, refurbishment costs ran a massive 53% behind full replacement costs. Coupled with environmental advantages, and the merits in retaining old buildings of aesthetic and heritage value, refurbishment and reuse are clearly economically viable and a realistic prospect.

Rebuilding Ireland is a €6 billion fund with an aim of delivery of 25,000 housing units per annum by 2020

Bringing back homes
Fast forward, however, to the aptly titled housing crisis of 2018/2019, where 10,000 people are now homeless, and we witness many dilapidated historic ‘over the shop’ buildings standing idly by, falling slowly into further disrepair.
In 2018 the Department of Housing, Planning and Local Government published the informative ‘Bringing Back Homes: Manual for the reuse of existing buildings’. This publication put forward possible conversion scenarios, albeit in relatively simple terms, showing how over the shop type accommodation could be utilised, and also pointed out the various statutory consents that were, or were not, required. These include planning permission, Fire Safety Certificate and Disability Access Certificate. The document also confirmed that the Safety Health and Welfare at Work (Construction) Regulations 2017 would apply to these works, to include the requirement to appoint a project supervisor for the design process (PSDP) and for the construction stage (PSCS).
‘Bringing Back Homes’ came on the back of the Government’s 2016 ‘Rebuilding Ireland: Action Plan for Housing and Homelessness’. This plan was designed to accelerate housing supply, including utilising vacant homes in the supply of rental accommodation. Rebuilding Ireland is a €6 billion fund with an aim of delivery of 25,000 housing units per annum by 2020, and includes the Housing Assistance Payment scheme (HAP) and the Rental Accommodation Scheme. Backed by a special housing delivery office within the Department of Housing, the plan promised, as a key action, to remove regulatory barriers to re-using vacant properties. Recent reports suggest that this initiative is lagging behind in terms of expected delivery, with an over-reliance on the HAP scheme coming to the fore. A recent Dublin City Council small housing project was scrapped, with excessive cost registered as an obstacle.

Regulations and incentives

The Planning and Development (Amendment) (No.2) Regulations 2018 were also introduced, which provided exemptions allowing change of use of existing specific buildings, to include office into residential use. This is a time limited incentive, running until December 31, 2021. It includes some minimum requirements, and sets down that a maximum number of nine units are permitted. The minimum floor and storage areas, required in ‘Sustainable Urban Housing: Design Standards for New Apartments’, introduced in March 2018, must be met. There are restrictions also in terms of protected structures, conservation areas, special amenity areas, special planning control areas, and restrictions in terms of separation from establishments where flammable materials are stored.
The Living City Initiative (LCI) is a tax incentive scheme to assist and encourage people to live in the historic inner city areas of Dublin, Cork, Limerick, Galway, Waterford and Kilkenny. This scheme is available to landlords who wish to refurbish existing over-the-shop residential properties. The minimum amount of expenditure for works is €5,000 and tax relief can be claimed for the money spent on refurbishment. This initiative expires in May 2020.
So with this plethora of legislation and incentives, why has there been no meaningful uptake of this opportunity? Tight town centre sites, ownership and title anomalies, cost, access to funding, unwieldy and multi-faceted statutory compliance issues, and unavailability of skilled labour have all been suggested as being deterrents. The matter of building control, and compliance with current Building Regulations, sits on top of this list.

The Living City Initiative (LCI) is a tax incentive scheme to assist and encourage people to live in the historic inner city areas of Dublin, Cork, Limerick, Galway, Waterford and Kilkenny.

At whose risk?
The design and construction of buildings is regulated under the Building Control Acts 1990-2014. Building Regulations are primarily concerned with the health, safety and welfare of people, rather than buildings. The Building Regulations and their suite of Technical Guidance Documents (TGDs) set out minimum performance requirements. Buildings are also subject to the requirements of the Fire Safety Acts 1981 and 2003. The Department of Environment also published Fire Safety in Flats (1994). This provides persons having control over premises with guidance on how best to implement and manage fire safety requirements.
In my opinion, the logjam in development exists because of risk and the associated potential for liability. The TGDs do state that a more relaxed approach can be adopted when dealing with existing buildings. However, in practice the fact that most works required to convert older buildings into dwellings constitute a “material alteration”, brings with it the requirement to obtain a Fire Safety Certificate and the need to appoint an Assigned Certifier. This means that a high level of compliance with fire regulations will be required, and rightly so, as this is at the heart of the protection of life. Older buildings with historic finishes can make absolute compliance harder to achieve or certify. Risk-averse designers and fire officers will be slow to suggest any reduction in compliance or the implementation of trade-offs. However, any deviation from compliance in terms of sound transmission, thermal insulation, ventilation and resistance to dampness and the like, which are outside of the remit of fire safety, introduces risk. By this I mean that if an issue arises with, for example, dampness or mould, or even the nuisance of sound transmission through party walls, the designer could be held liable. Failure to meet rigorous modern standards may be agreed with a client in advance of works, but later failures can lead to selective memory.
Local authorities are slow to give a green light to deviation from the TGDs, as are professionals, as any such deviation moves risk to their side of the equation. Until there is clear guidance to designers and Assigned Certifiers on the relaxations that apply in terms of Building Regulations, or a disclaimer from the client in terms of liability, this type of development will remain unattractive. These buildings were built to last, but like the second- and third-generation office buildings mentioned above, unless there is change, they too may soon be reduced to rubble.

Noel Larkin MSCSI MRICS
Chartered Building Surveyor