by Carol Tallon & Derek Trenaman
[Originally published in The Sunday Business Post, February 16 2014]
The Building Control Amendment Regulation (SI.9 of 2014) comes into effect on 1st March 2014 and will apply to all new houses or extensions greater than 40 sq meters on which work is due to commence after that date. They will affect not only developers and professionals in the trade, but also home-owners who undertake a self-build project or upgrading works.
The new Building Regulations BC (A)R 2013 and Health Safety & Welfare Regulations may seem like an onerous and expensive exercise for every party involved; however, they will serve to provide owners developing property and potential purchasers of property with assurances that buildings, such as Priory Hall or house extensions over 40 sq meters will, in the future, comply with the Building and Planning Regulations. The new procedures apply to all new works that require a fire certificate, new domestic houses as well as domestic extensions over 40 sq meters. There are exemptions from the Building Control Regulations for extensions under 40 sq meters however they must still comply with the Building Regulations. The purpose of these new regulations is to pinpoint the responsibility and liability of parties if a building defect or health, safety & welfare issue occurs. Final certificates are signed by both the Assigned Certifier and the Competent Builder prior to occupation of the building.
For self-builders or home-owners, it is essential to become familiar with the new regulations prior to undertaking any works. Under the new building regulations, the owner has statutory responsibilities to appoint in writing a competent “Assigned Designer”, an “Assigned Certifier”, and a “Competent Builder”. If a change occurs within the appointed team during the lifetime of the project, the owner or Assigned Certifier must inform the Building Authority of this change, and this notification must be in writing. The Assigned Certifier can be a Registered Architect, Chartered Engineer or Registered Building Surveyor. The Assigned Certifier should be selected based on the qualification, experience and suitability of that professional having regard to the role on any particular project. For example, owners would be well served by looking at previous projects undertaken by the professional in question and seeking references from previous roles. In addition to the above obligations under the Health, Safety & Welfare Regulations, the owner undertaking a domestic project must appoint in writing a “Project Supervisor of the Design Process (PSDP)” and a “Project Supervisor of the Construction Stage (PSCS)” for construction work intended to last longer than 30 days or 500 person days, where there is more than one contractor and where there is a particular risk. The purpose of the PSDP and PSCS is to ensure buildings are designed, developed and maintained safely. Their role is to identify particular risks and then either design a solution to that risk or propose a safe strategy to work within the risk. The PSDP prepares a Safety File, with relevant drawings, specification and manuals.
There is little doubt that these new regulations are complicated for non-professionals. The first step for self-builders is to make themselves aware of who exactly is responsible for what. Below is an outline of the key professionals required to undertake any project in excess 40 sq meters:
(i) Assigned Designers are responsible for designing the building in accordance with the Building Regulations. They issue a Certificate of Compliance (Design) at Commencement Notice Stage. Depending on the project there can be a number of Assigned Designers responsible for the design such as a Architect, Interior Designer, Engineer to name a few.
(ii) Assigned Certifiers are responsible for inspecting and co-ordinating the inspection by the relevant skilled professionals or contractors. The Assigned Certifier prepares a Site Inspection Plan and notifies and records the inspection process as well as collecting Ancillary Certificates from relevant skilled professionals or contractors. They are appointed by the client in writing and they issue a letter of undertaking to the Building Control Authority. When the project is complete they issue a Certificate of Compliance.
(iii) Competent Builders are defined by the Construction Industry Federation (CIF) as a director of a company who has a track record of experience with similar projects and is tax compliant. An owner must appoint a competent builder from the outset who will sign a completion certificate on completion of the project. The CIF are currently compiling a voluntary register of builders and a mandatory registration of builders is coming down the tracts.
(iv) The Project Supervisor of the Design Process (PSDP) is responsible for managing and coordinating the work of designers. The PSDP undertakes risk assessments to identify hazards and to work with the design team to design out or design for hazards during the design process. They also prepare a Preliminary Health & Safety Plan which is issued to the PSCS at Construction Stage, notify the Health & Safety Authority that works are commencing (AF1 Form) as well as preparing a Safety File on completion of the project. A client is required to appoint a competent PSDP for the duration of a project. The Project Supervisor for the Construction Stage (PSCS) is responsible for managing and co-ordinating health and safety matters during the construction stage. They work with the PSPD to develop the Health & Safety Plan as well as notifying the Health & Safety Authority that construction works are commencing on site (AF2 Form). The client is required to appoint a PSCS in writing.
There has been a strong level of resistance to these new regulations, both within the industry and from home-owners themselves. One of the factors of resistance is the issue of cost, at a time when costs have made many development projects untenable, the industry will struggle with this increase. So what is the Cost and benefit of Compliance? While there will undoubtedly be an increased cost for compliance, the cost can be balanced against the fact that intending purchasers or the owners of a property will know that the building has been designed and built by competent professionals. The building when certified as complete will be put on a National Building Register so that any future purchasers can assess details and specification of the buildings construction.
The cost of appointing a PSDP and PSCS under the new Health Safety & Welfare Regulations for domestic projects will ensure that buildings are safely built, safe to operate and maintain. The preparation by the PSDP of a building specific Safety Files will mean that this information can be passed to subsequent purchasers of the property.
The Department of the Environment has undertaken an extensive consultation process with Stakeholders and representative groups to develop the new Building Regulations System. This has resulted in the choice of a system that enhances the existing Self Regulation System rather than adopting a Third Party inspection system similar to the United Kingdom. There is still significant objection to the process and its rushed implementation; however, it is now signed into law and effective as of 01 March 2014. There will be an opportunity to review the new building regulations process with the stakeholders after 12 months.
The biggest question surrounding the new Building Regulations is whether their introduction will prevent the failures in the system that lead to Priory Hall? It would appear that the answer to that is inconclusive insofar as any Self Regulated System holds the potential for abuse of the system. Having said that, these new building regulations have extensive procedures and penalties for non- compliance and that can only be a positive thing. Of course, it remains to be seen how these new Building Regulations will be enforced by the various Local Authorities nationwide as that will be the true measure of their effectiveness.
This new system may appear over-whelming for home-owners and prospective self-builders, however, the reality is that at some point we must rely on choosing a professional to do a professional job. There needs to be trust but it is imperative that that trust is underpinned with a robust regulatory foundation and the safe knowledge of effective enforcement if things go wrong. It would not be desirable or even practical to adopted a system whereby third party professionals were brought in to inspect our appointed professionals – this would cause the entire building process would become a very expensive and unnecessarily cumbersome process. Based on the proposed process, the question might well arise about what would happen if the “Assigned Certifier” was to disappear, pass away or indeed simply go out of business. The Assigned Certifier’s Professional Indemnity will most likely cease and with that the validity of his certification work, resulting in a person not having any recourse should a defect occur. This is an area that the new Building Regulations has not addressed. There are proposals from the Stakeholders to implement a mandatory Latent Defects Insurance Policy. This is an insurance policy that will ultimately give consumers recourse to seek compensation if a defect occurs. The view among professionals is that some form of Latent Defects Insurance Policy ought to be is incorporated into the regulations at an early stage.
The regulations go a long way towards protecting purchasers of large developments but as we can read above, they place onerous obligations on people building house extensions. There is also no protection for purchasers of existing dwellings with an extension of less than 40 sq meters. These homes will still be required to comply with the existing Building Regulations; however, they will be exempt from the Building Control Process and the appointment of an Assigned Certifier. This effectively leaves the Building Regulations as they currently stand for these projects. Existing owners who employ substandard professionals or contractors will simply pass the problem on to the new purchaser. Professionals undertaking structural reports for purchasers simply cannot inspect or comment on parts of the construction that are not visible and recommend the purchasers to rely on Planning and Building Regulation Certificates.
I (Derek Trenaman) have come across a number of domestic extension projects recently, where certified works completely failed to meet the Building Regulation Standards and defective work have cost the Clients tens of thousands of euro to rectify. They have no recourse as the professionals who signed the certificates of compliance and the contractors who undertook the work are no longer in business or hold Professional Indemnity Insurance. It does not make sense to protect owners who employ substandard professionals; however, we should protect purchasers who, after undertaking due diligence to the best of their means, fall foul of bogus Planning and Building Regulation Certificates.
Change is always difficult but the purpose of this change is to create more protection for the consumer, which is an honourable and sensible objective. The new building Regulations have definitely strengthened the self regulation process but it is clear that more work needs to be done to protect the non-professionals.
Carol Tallon, Author of the Irish Property Buyers Handbook 2014 & Derek Trenaman, registered Architect with Ceardean Design