In this opinion piece from Eoin O’Cofaigh on 26th March 2014, past president of the representative body for architects (RIAI) and current council member outlines some of the unintended consequences of Building Control (Amendment) Regulation (SI.9 of 2014) for small and medium-sized businesses.
BUILDING CONTROL (AMENDMENT) REGULATIONS 2014
KEY ISSUES FOR SMALL- AND MEDIUM-SIZED ENTERPRISES
These regulations (S.I. 9 of 2014) came into force on 1 March. They were drafted primarily to respond to failures in the speculative residential sector (the “Priory Hall” and pyrites scandals). However they impact on every significant building project in the State, as well as on most smaller ones.
The regulations impose new statutory duties on building owners commissioning building design services and construction works. The owner must employ a Design Certifier and an Assigned certifier and pay these people in respect of services they are required to provide.
Among those services are a requirement to make submissions to local building control authorities of drawings and specifications, both at commencement and again before completion of the building works. The building or works may not be opened or occupied unless and until the local authority validates those submissions.
By the Building Control (Amendment) (No.2) Regulations 2014 (S.I. 105 of 2014), the Minister has subsequently deferred introduction of the regulations for schools and hospitals.
Key issues for small- and medium-sized enterprises
Why, when the regulations responded to failures in the residential sector, did the Government choose to impose an increased regulatory burden on all sectors?
Who considered it necessary to introduce these regulations for non-residential work?
By requiring the building control authority to validate the “Completion Certificates” before building or works may be opened or occupied, the regulations increase uncertainty around completion of all projects. This will impact adversely on all projects where timely completion is of the essence.
These projects include retail projects in the run-up to Christmas, Hotel and pub licensing applications at many times of the year, and short-period fit-out projects where the job will often be finished before the timescales in the regulations apply.
Why did the Government consider this necessary?
Who did the Government consult outside the construction sector about the content of these regulations when drafting them?
By requiring building owners to submit drawings and specifications to building control authorities in the expectation that these will be available to interested parties, the regulations threaten the integrity of intellectual property in buildings with commercially sensitive data on, for example, manufacturing processes.
Did the Government consider the adverse impact of this requirement on projects (whether small or large) funded by Foreign Direct Investment and why did they consider it necessary to impose the requirement in that regard?
In the commercial sector, unlike in the State sector, the cost of regulatory compliance must be borne within the “closed circle” of income derived from the sale of goods and services.
The cost of paying the certifiers must be recouped from our customers by way of increased prices, or by reducing profits or overheads.
Why did the Government consider this before imposing this cost on business, given the lack of demand from business or consumer organisations alike to impose the regulations outside the residential sector?
Given that the Irish system of construction sector regulation was already one of the least competitive in the Developed World, why did the Government not take the opportunity to simplify – which is not the same as to remove – the entire system of building regulations, instead of introducing more costs and uncertainty into the system?
Why did the Government defer the regulations for most State-funded projects but not for privately-funded projects, given that calls for deferral were in respect of all projects, public and private sector alike?
Finally, given the view of the National Consumer Association, the report of the Pyrites panel, and the views of the RIAI that self-certification is not an appropriate method of consumer protection, why did the Government proceed to bring just such a system into force and not introduce a self-funded system of independent inspectors such as has been in operation for many years in England and Wales?
Eoin O Cofaigh