The first piece of correspondence to be seen by the BRegs Blog that was sent by the new Minister for the Environment, Alan Kelly T.D., is not reassuring. In this potentially ‘explosive’ email his Private Secretary, Larry Kelly, clearly places the responsibility for identifying pyrite in building materials onto the Design and Assigned Certifiers. This must act as a serious warning to anyone taking on these roles after the recent discovery of Pyrite in concrete blockwork in the Leinster region.
Here is the correspondence (please note that the language used is quite complex and almost indecipherable but the final paragraph neatly sums up the position):
“I have been asked by the Minister for the Environment, Community and Local Government, Mr. Alan Kelly, T.D., to refer further to your recent correspondence to his predecessor, Mr. Phil Hogan, T.D., in connection with pyrite in concrete blocks and the Building Control (Amendment) Regulations 2014.
At the outset, I would like to clarify the position with regard to the recent allegations of pyrite in concrete blocks. As you have indicated, there have been a number of reports in relation to pyrite in concrete blocks in the Leinster area. In this context, the Department was made aware, in April of this year, of a potential problem with pyrite in concrete blocks by the market surveillance authority (i.e. building control authority) in whose functional area the block manufacturer is located. This issue related to the manufacture of concrete blocks for distribution and use in a small number of construction sites in the Leinster area. As you can appreciate, the overarching priorities in this instance was to ensure that all defective blocks were recalled as a matter of urgency and, preferably, before any affected buildings were sold, leased or occupied and that any corrective actions required by the manufacturer were satisfactorily addressed.
The issues concerning defective concrete blocks in Donegal and Mayo relate to legacy issues stemming back to dwellings built in the period 1997 to 2002 (in respect of Mayo) and 1999 to 2006 (in respect of Donegal). It is important to note that while pyrite has been reported as the cause of the problem in Mayo and muscovite mica in Donegal, no firm evidence has been made available to this Department to confirm the precise nature and scale of the problem in either county. Nevertheless, the Minister fully appreciates and acknowledges the extremely difficult and distressing situations that these householders have to deal with and urges the responsible parties to face up to their obligations and take appropriate actions to provide remedies for the affected homeowners.
The Building Regulations 1997 set out the legal requirements for the construction of new buildings (including houses), extensions to existing buildings as well as for material alterations and certain material changes of use to existing buildings and are divided in 12 parts (classified as Parts A to M). Technical Guidance Documents (TGDs) are published to accompany each of the parts and provide guidance indicating how the requirements of that part can be achieved in practice. Where works are carried out in accordance with the relevant technical guidance such works are considered to be, prima facie, in compliance with the relevant regulation(s). Primary responsibility for compliance with the requirements of the Building Regulations rests with the designers, builders and owners of buildings.
Part A of the Second Schedule to the Building Regulations sets out the legal requirements in relation to Structure. The accompanying Technical Guidance Document A provides guidance on how compliance can be achieved and in the context of block work in houses reference is given to the appropriate masonry design and construction standards. The materials to be used, e.g. concrete blocks, wall ties etc. are required to meet the specified minimum designations, strengths and other qualities, as set out in the technical guidance and the referenced standards. Part D sets out the legal requirements for Materials and Workmanship. It requires that all works must be carried out using “proper materials…which are fit for the use for which they are intended and for the conditions in which they are to be used” and in a workmanlike manner to ensure compliance with the Building Regulations.
Ireland’s national standard I.S. 20:1987 Concrete Building Blocks – Part 1 Normal Density Blocks was the relevant standard for concrete blocks in place from 1987 until 2003 when it was replaced by a harmonised European product standard for concrete blocks – EN 771-3 aggregate concrete masonry units (dense and light weight aggregates). EN 771-3 was published by the National Standards Authority of Ireland on 17 March 2003 and came into effect on 15 October 2003. However, as is normal in such circumstances, the provisions in I.S. 20:1987 continued to apply for a period of time (known as the co-existence period) to allow for transition from national standards to harmonised European standards.
Harmonised European product standards provide the methods and the criteria for assessing the performance of construction products in relation to their essential characteristics, the harmonised standard includes the technical data necessary for the implementation of a system of assessment and verification of constancy of performance including third party oversight (determined as proportionate to the level of risk involved) which the manufacturer is required to comply with. The National Standards Authority of Ireland has also produced additional guidance to some harmonised European product standards in the form of National Annexes or Standard Recommendations (SRs) which set out appropriate minimum performance levels for specific intended uses of certain products in Ireland.
In this context, a National Annex to I.S. EN 771-3 was produced by the National Standards Authority of Ireland in November 2010 to provide additional guidance on the minimum acceptable performances for concrete blocks for use in Ireland to supplement the harmonised European standard. Guidance was provided on the strength, moisture movement, reaction to fire etc. but crucially requiring that the aggregates for use in dense concrete blocks comply with I.S. EN
12620:2002 Aggregates for concrete. This is important given the National Standards Authority of Ireland have also produced S.R. 16 Guidance on the use of I.S. EN 12620 Aggregates for concrete which includes an example specification in Annex A applicable to most general uses of aggregates in concrete covering grading, strength, durability, chemical composition etc. With these national provisions in place and continuity of quality secured, I.S. 20:1987 Concrete Building Blocks – Part 1 Normal Density Blocks was subsequently withdrawn by the National Standards Authority of Ireland in 2011.
Under Regulation (EU) No 305/2011 of the European Parliament and of the Council laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC (known as the Construction Products Regulation), manufacturers are required to provide robust and reliable information in a consistent way for construction products which are covered by a harmonised European standard or a European Technical Assessment. From 1 July 2013, manufacturers of construction products which are covered by harmonised European product standards are required, when placing a product on the market, to make a Declaration of Performance for the product, and affix the CE mark.
In broad terms, the Declaration of Performance is central to the understanding of the Construction Products Regulation. A manufacturer is required to draw up a Declaration of Performance when a product, covered by a harmonised European product standard or a European Technical Assessment, is to be placed on the market. Ultimately, the Declaration of Performance gives a manufacturer the opportunity to deliver key information with regard to the essential characteristics of the construction product that he/she wishes to deliver to the internal market. The manufacturer, by drawing up a Declaration of Performance, assumes responsibility for the conformity of the construction product with its declared performance(s). Where a manufacturer makes a Declaration of Performance there is a presumption that the information declared is accurate and reliable, unless there are objective indications to the contrary.
Accordingly, in order to ensure compliance with the requirements of the Building Regulations, building professionals (i.e. specifiers, designers and builders) and their clients should: –
- when drawing up specifications, refer to the harmonised technical
specifically to the requirements of individual characteristics when necessary,
- when choosing the products most suitable for their intended use in
construction works, review
the manufacturer’s Declaration of Performance to ensure that the products are “proper materials… which are fit for the use for which they are intended and for the conditions in which they are to be used”, and
- check National Annexes or Standard Recommendations (where
applicable) which give
guidance on appropriate minimum performance levels for specific intended uses of the product in Ireland.
Ultimately, the purchasers/users of construction products should check the information accompanying the CE marking to ascertain whether the products are appropriate for their needs.
The recent Building Control (Amendment) Regulations 2014 (S.I. No. 9 of 2014), which came into operation on 1 March last, aim to strengthen the arrangements in place for the control of building activity by requiring greater accountability in relation to compliance with Building Regulations in the form of statutory certification of design and construction, lodgement of compliance documentation, mandatory inspections during construction and the validation and registration of certificates of compliance. Under the regulations, the owner of the building/works will be required to engage competent registered professionals to undertake the design of the building/works and to perform the role of the assigned certifier whose function is to prepare and implement an inspection plan which will, inter alia, identify the inspections and tests needed during the construction works as well as the persons (in addition to the assigned certifier) who will undertake such inspections and tests. In this context, the role of the assigned certifier will include co-ordinating the ancillary certification that may be required by members of the design team and other relevant bodies in support of completing the statutory Certificate of Compliance on Completion.
While the new regulations do not make explicit reference to Declarations of Performance for construction products, given the regulations require both the design professional and the assigned certifier to sign statutory declarations (the latter in conjunction with the builder) certifying that the building/works has been designed and constructed in compliance with the requirements of the Building Regulations, Declarations of Performance may be relevant as a means of demonstrating that “proper materials” have been used in accordance with Part D of the Building Regulations.
I trust the foregoing will be of assistance.