A recent case (Liberty V Campagna Ltd [UK/Campagna Limited Ireland]. Technology and Construction Court HT09-160 +161) heard in the Technology and Construction Court in London indicates why a new not-for-profit regulatory framework is the only answer to providing consumer protection in respect of ensuring compliance with the building regulations. The case dealt with the performance of auditors responsible for inspecting residential dwellings on behalf of an insurance provider offering five-year water damage and 10-year structural cover on new residential dwellings in Ireland since 2003. This particular auditing company had, over a six- or seven-year period, inspected in the order of 65,000 residential properties as part of the insurance scheme in both the UK and Ireland. There followed a series of claims by homeowners against the policy for damage and defects. However, there were very few claims on UK dwellings when compared with those in Ireland.
During the trial, the judge observed correctly that the systems of regulatory control are very different between the two jurisdictions and, as it happens, the insurance policies were set up differently, with the Irish system effectively removing liability to address defects from the builder as soon as the home was finished.
In summary, and on the main issues, Mr Justice Edwards Stuart found in favour of the insurance underwriters, and in his summing up he asked why it should be that the auditors failed to discharge their duties in Ireland and not so in the UK, where many of the same auditors also inspected houses. He also concluded that, on the residential developments under review in this case, the degree of specification by designers was limited and that builders were very often left to work out details for themselves. He went on to say that his “overall impression is that many short cuts were taken in the construction of the ‘subject’ developments and no one put a stop to it”.
This case highlights how the absence of a not-for-profit regulatory inspection regime can lead to a lowering of standards of construction, and strengthens the case for independent inspection of construction in Ireland, a system that does not currently exist.
It is widely accepted across the construction industry that the current implementation of the self-certification provisions enshrined in the 1990 Building Control Act will only work if there is a responsible client, contractor and design team in place. In cases where these three very different roles become blurred, the scope to ‘get away’ with short cuts increases. Essentially, what happened on certain developments in Ireland during the last 10 years or so is that from commencement of the work through to completion, independent check or verification was not necessary, and builders and sub-contractors were given free reign to build as they saw fit. In many cases the client was also the builder, and in some cases the designer as well, and maximising profit was the name of the game.
What about the ‘Opinions on Compliance’ that is issued to the conveyancing solicitor prior to purchase, I hear you say? Well, as most industry professionals will tell you, it’s not really worth a great deal and in fact is issued for the purpose of establishing title as opposed to verifying the standard of construction, as the small print on published opinions clearly states. The unsuspecting homeowner certainly doesn’t know that in most cases, even if a problem is uncovered in a house/building at a later date and the builder has long since moved on, the homeowner will certainly have no redress back to the architect, engineer or surveyor who, in all probability, didn’t set foot on the site in any event.
Liberty V Campagna Ltd
What this case establishes is that even when a basic minimum ‘for profit’ inspection scheme is undertaken on behalf of the home insurance market it can be flawed. In this instance the number of inspections was too limited and the contractor dictated when inspections were carried out so it was heavily in favour of contractors. While there is a view among architects, engineers and even those within the Society that some form of self-certification can be made to work, I am of the view that this can only be made to work if:
1. The rights of the consumer are at the fore of any proposal. By this, consumers must have a right of redress against those who fail to correctly design and build to meet current building regulations.
2. The submission to the Building Control Authority (BCA) at commencement notice stage of a ‘Design Certificate’ accompanied with detailed drawings covering all aspects of the building regulations is mandatory (as opposed to parts B – Fire and more recently Part M – Accessibility, which will remain the two parts of the building regulations that are formally approved by the BCA). Reliance will remain with the certifier and the design certificate, as the drawings will be for record purposes and not for approval.
3. There is an increase in the fees paid to local authorities to administer an increase in information being lodged and to fund an increase in inspectors and, more importantly, inspections. The €30 fee to lodge a commencement notice is quite frankly derisory.
4. There is the introduction of key milestone mandatory inspections such as at drainage stage, foundation stage, floor slab, wall plate level, roof completion and on completion. The designer must inspect at these stages to verify and sign off that an inspection has taken place and that the works carried out comply with the building regulations. No new home or building should be able to be sold without every stage being confirmed as being signed off.
5. The Certificate of Compliance at completion of the development is lodged with the BCA and the development is not occupied until this certificate is received. As-built drawings should also accompany this certificate to reflect changes that invariably occur during the construction stage.
6. The professional bodies, such as the Society/RIAI and Engineers Ireland recognise that in order to raise standards their members must take on greater responsibilities for ensuring that designs meet the highest standards, but that they also have a role in ensuring that standards are implemented, i.e., they cannot merely accept that their responsibility is for design only and not for any part of the build.
7. The professional indemnity insurance market takes a role in improving standards and ensuring that those they insure are properly trained and implement good quality control procedures. Professional indemnity cover for carrying out the design and inspection function should be mandatory and available to all purchasers of new buildings or altered buildings where compliance with building regulations is a prerequisite. I’m not sure whether this could be achieved by some form of simple warranty in favour of purchasers, but creating privity of contract is essential.
8. The BCA inspects a minimum number of developments (say 25%) at least once during the construction stage and publishes the results of inspections on the internet for public review.
Failing this, the only other solution I’m afraid is a verification scheme that is centrally controlled and operated by a central or regional BCA identical to the one that exists in the UK. While this is not perfect, it is understood by all and accepted as resulting in higher standards.
I do not for one moment think that all house builders cut corners, or that all designers don’t know their Part A from their Part F, but there is a sufficient shortfall in terms of overall quality and end user satisfaction to warrant a change.
Oliver is an associate with Watts Consultancy Limited, and immediate past chair of the Building Surveying Professional Group, Society of Chartered Surveyors Ireland.