The following opinion piece was received by the BRegs Blog on 17th July 2014. Simon McGuinness is an architect in private practice in Dublin, a certified passive house designer and a part-time lecturer in DIT. Follow him on twitter @PassiveLogical.
What is the difference between BC(A)R compliance and BRegs compliance?
Building Control Regulations compliance is the public process by which liability for non-compliance with Building Regulations is recorded; Building Regulations compliance is the professional process by which designers of buildings avoid that liability by proving that they have complied.
Why is the focus of professional bodies solely on the former when it is inevitably the latter that will end their members up in court?
The Building Control Act 1990 lays down the penalties for a breech of each subsequent regulation issued, including both BCAR and BRegs. The tariff following conviction on indictment for a serious breech of the Building Regulations could extend to a fine of €12,600, 2 years imprisonment and/or being banned from signing certificates of compliance for 10 years. Compare this to the penalty for a breech of the BC(A)R procedure, which might, on summary conviction, warrant a fine not exceeding £800.
Where would a risk assessor advise you to focus your attention: BC(A)R or BRegs?
Architects, Surveyors and Engineers are wrongly focused on the mechanics of compliance with BCAR (S.I. 9 of 2014): when documents need to be lodged, how to upload them, who should sign what piece of paper, etc. Professional bodies are spending endless hours in continuing professional development (CPD) to up-skill members in the clerical document management processes of BCAR, and, in some cases, misleadingly describing it as Building Regulations Compliance training. Private educational providers are also alert to the opportunities for selling similar CPD. But none of it is actually BRegs compliance training, it is simply explaining the procedural process by which BCAR establishes liability for non-compliance with Building Regulations. Those most skilled in BC(A)R, under the current CPD offerings, will be able to flawlessly establish their own liability for design failures by following the BC(A)R process correctly. Through this, they could facilitate their being ‘hoist on their own petard’ at some future date.
Professionals in the Architectural, Engineering and Design (AEC) industry need to focus more on how to prove their designs comply with Building Regulations, and less on how they negotiate the BC(A)R system of establishing liability for design failures. The former will keep them out of court, the latter merely assists those who are most likely to want to prosecute them, should anything go wrong.
AEC professionals are unlikely to find them selves defending failures of process in the circuit court – the BCMS system will spit back the documents until they are correctly lodged – but they are very likely to find themselves justifying their designs to a court as a result of a design failure resulting from, for example, mould growth within a dwelling.
In the case of mould growth, there is only one way to show compliance with Part L, 2011: prove, by numerical calculation, that an fRsi of 0.75 (or 0.70 for ground floor junctions) has been achieved. If this calculation cannot be produced for the court, your design is non-compliant. Period. If the constructed building varies from the design assessed by the numerical calculation, then the construction is non-compliant. Period.
The only possible ‘deemed to satisfy’ provision for surface temperature applies to a series of standard details (ACDs) which have been produced by the Department of the Environment, Community and Local Government. If any detail in your house or apartment falls outside of the very tight parameters for use of the ACDs, you must produce a numeric calculation undertaken by a member of the NSAI scheme proscribed.
It is instructive to examine the limitations on the use of ACDs. If your roof u-value is better than 0.11 W/m2K, you cannot use any of the ACDs to prove fRsi compliance. If your wall u-value is better than 0.12 W/m2K, you can’t use any of the wall details. If your floor u-value is worse than 0.18 W/m2K, you can’t use the ACDs. If your design contains a bay window, an uncertified window, a cantilevered balcony, a rooflight or a threshold you are outside of the ‘deemed to satisfy’ environment. In the event of mould appearing in that part of the building, you will be required to produce a numeric calculation for the court or your design will be deemed to have failed to comply with Part L of the Building Regulations, 2011.
The TGDs stipulate that that numerical calculation can only be produced by an NSAI approved Thermal Modeller using NSAI approved 3D thermal bridge modelling software. Few AEC professionals have ever heard of a Thermal Modeller, let alone know what they do. This ignorance is a measure of their legal exposure when certifying design compliance, even for buildings as simple as house extensions.
As an AEC professional, you must decide where to spend your compliance training budget: on BC(A)R or on BRegs, on following procedural rules (FETAC level 5) or on mitigating professional design risk (FETAC level 9). Only one of these is likely to effect your insurance premium and, with it, your ability to practice your chosen profession. Level 5 CPD is easy to deliver, level 9 CPD is an entirely different proposition.
Simon McGuinness, MRIAI.