S.I.9 : Is the scene set for another Priory Hall?

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The following opinion piece was originally submitted to the blog as a comment on 6th September 2014 and has been re-formatted.

In the Dáil on October 1st 2013 Enda Kenny said:

I do not believe, however, that every single developer or contractor should be branded in the same way as those who put together Priory Hall. It is not just in one instance that negligence or incompetence occurred because there were systems failures along the line.” Click link here.

It is worth examining some of the systems failures in Building Control that lead to problems in some of the defective apartments and housing estates. It is unfortunate that no report has ever been undertaken by the Government into identifying the causes of the failures that happened throughout Ireland and that have taken years to come to light in developments such as Priory Hall and the Meath Apartments that had to be evacuated at the end of 2013. Some of these are listed below and rectifying these should have formed the basis for any new Building Control legislation:

BUILDING CONTROL SYSTEMS FAILURES

1. The developer did not employ competent and suitably qualified designers (developers completed large numbers of dwellings built with the input of in-house engineering staff only. Other professionals input was limited usually to planning stage only).

2** The developer did not employ competent builders (quite a number of speculative residential developments were completed by developer-builders, where the developer and builder were the same company. Essentially that was the equivalent of large-scale self-builders who occupied the role of management contractors.

3* The design was not inspected signed or approved by the Local Authority (little or no independent Local Authority building control inspections carried out nationally)

4** The developer did not employ a competent supervisor (foreman) on site to oversee the work (for owner-developers most construction personnel involved in site management were in-house employees)

5 The developer did not employ a competent independent professional to inspect the work (Previous professional compliance system allowed for partial-service only, including “visual inspections” on completion of projects. Frequently this resulted in little or no independent professional input on-site).

6* The local authority had no obligation to ever visit the site (since 1990 this has been the case, and remains so with an unrealistic target of 15% Building Control inspections nationally. The new regulations impose additional administrative duties on Local Authorities but the Building Control Sections remain understaffed).

7* The local authority did not have any system to catch defective materials like pyrite (no additional resources or enhanced powers have been introduced on foot of the pyrite panel report in 2012, critically there is still no comprehensive independent local authority inspection system for the construction sector)

8* The developer did not have to put in place any effective safeguards to pay for latent (unseen) defects. (previous structural guarantees have been seen to be patchy and not satisfactory, particularly in relation to defective materials such as pyrite. Some Defects Liability Insurance schemes do operate but the consumer is left looking through the fine-print).

9 The professionals gave very limited guarantees because they were only paid for very limited involvement (as mentioned above partial service agreements, acceptable for conveyancing, required cursory independent professional involvement in projects, in some instances none at site-stage. No registration of title meant that anyone could complete these certificates).

10* The solicitors and lending institution did not advise the purchasers to get independent inspections. (there is no way to anticipate how lenders and the law society will react to the new regulations- the Law Society were excluded form the formation of the new regulations).

11* The developer wound up the limited liability development company once the development was sold (unfortunately nothing in the new regulations precludes this practice of minimising the liability trail to developers in the event of defects occurring post-completion).

12* The home buyer had no comeback unless he could prove negligence through a slow and costly case in the courts (lack of additional consumer protections in the new regulations means the same situation arises in the event of a defect occurring post-purchase- homeowners are left seeking redress through the courts with no guarantee of success)

13* The Local Authority could not take action because the law is unworkable (lack of additional resources, no Local Authority code of practice, differing interpretation between authorities of the new regulations means that Local Authorities are dealing with a system in place that is being developed post introduction. Suggested new inspection regime of 4 inspections per unit will mean target  inspection rates will drop to less than 4% of buildings completed.)

14* The government stepped in and the tax-payer footed the bill (given the recent pyrite issues in blockwork, responsibility for policing the market has been placed with Local Authorities. It is anticipated that the taxpayer will continue to pay for defective materials in the construction industry, like the recent pyrite remediation scheme, or face class action law suits from disenfranchised homeowners. The insurance industry will simply exclude materials that the industry is not policing adequately).

Nine* (highlighted in bold*) of these 14 issues issues are not addressed under the new Building Control (Amendment) Regulations and a further two (shown **) are only partially addressed with promised new legislation at some time in the future.

The S.I. 9 system of Building Control is is unlikely to prevent future failures. Unfortunately the scene is still set for the further ‘Priory Halls’.

Other posts of interest:

Legal perspective: consumer benefit? BC(A)R SI.9

Summary of Legal Posts- BC(A)R SI.9

How developers are “adapting” to the new Building Control regulations

Opinion: Are builders + developers off the hook with BCAR?

Press article: Government promotes developers over self-builders?

New Law Society Guidance Note on BC(A)R SI.9

Practical Post Series 1-20

Pyrite & SI.9- what happens now?

0 thoughts on “S.I.9 : Is the scene set for another Priory Hall?

  1. Michael O'Neill

    I’d like to note the following in relation to Item 9.

    = = = =

    9 The professionals gave very limited guarantees because they were only paid for very limited involvement

    (as mentioned above partial service agreements, acceptable for conveyancing, required cursory independent professional involvement in projects, in some instances none at site-stage. No registration of title meant that anyone could complete these certificates).

    = = = =

    Professionals do not give ‘very limited guarantees’: they offer Opinions.

    Manufacturers offer guarantees. There is an argument that builders should offer them. Specialist suppliers – roofing systems for example – already do.

    Even with limited involvement, there were inclusions in the Opinions which should have offered comfort.

    The wording of the Architects Opinions as agreed previously by the law society and professional bodies offered assurances that were qualified as being based on visual inspection, unless otherwise noted.

    At the item on Schedule A Assurances were included ancillary certs from professionals covering each discipline.

    (There is a big difference between a visual inspection by a professional and one by a lay-person.)

    Periodic inspection on site is defined as the full service and opening up works. This was not provided on Priory Hall I understand.

    Architects also accepted certificates for the Built Work from the Main Contractor, Sub-Contractors and Specialist Suppliers, etc.

    These, where included, gave additional comfort in relation to the building proper, as opposed to the design of it, and relied on the builders obligation in law TO BUILD IN ACCORDANCE WITH THE REQUIREMENTS OF THE BUILDING CONTROL ACT AND ATTENDANT LEGISLATION!

    The total package of certification was quite comprehensive and credible – IF a design team was appointed to take the building to site!

    That is ALL the New Regulations had to do! Force Developers and Contractors to use Professionals all the way through the building process!

    Simple! But too complicated for the former Minister.

    Instead his department drew up regulations that allow the Developers and Builders to hide behind the Straw man of the Assigned Certifier!

    Because now the Builder and Developer do NOT have to build in accordance with the Regulations made under the Act. They only have to build in accordance with the drawings. Their legal and criminal liability is fudged by the legislation brought in by the former Minster.

    Who benefits from this? Not the Public. Not the Professions. And arguable not the developers and builders either, who are beginning to accept that they have to up their game.

    Let me underline the implications of this legislation vs the old.

    The architect in the Priory Hall case rested on work done by persons of questionable competence. With possibly no role in the contractor’s vetting or selection process (with no competent main contractor?), his Opinion rested on work of unknown provenance.

    With no appointment to inspect during the works, the architect was disempowered.

    With no local authority officer making even a cursory (15%) inspection rate, the public was disenfranchised in terms of its expectations of getting a product fit for purpose.

    Let me state this clearly in relation to the new regulations.

    The lack of oversight by the local authority leaves the professionals and the public at the mercy of the rogue developer and rogue of incompetent contractor. In the Priory Hall case, it appears that these two perpetrators came together in a single entity to create the perfect storm. Only an obligation to appoint a design team and build per the regulations AND local authority inspections could have solved this.

    Do we see an obligation to retain a design team on every project front and centre – arguably, yes.

    Do we see an obligation on the local authority to inspect and enforce standards – no, we do not!

    Are the people must likely to commit egregious crimes – rogue developers and builders – targeted by the new legislation – not at all.

    Will Priory Hall happen again? Possibly, but under the present legislation and penalties, its unlikely it will be certified by any sane person.

    A final note re Certification.

    The comment I cited states in brackets: “No registration of title meant that anyone could complete these certificates”.

    This is not the case. The law society was clearly advising its Members back in 1994 or thereabouts from whom they should accept certificates. The buck stopped with the conveyancing solicitors and more often than not, the solicitor acting for the lending institution.

    Certification was not accepted from just ‘anyone’, pre 1st May 2008.

    – Persons with 10 years experience in the building industry
    – Persons with prescribed qualifications in Architecture
    – Qualified Engineers

    At a National Level these Certifiers were all acceptable back in the day.

    At local level, Banks and local lenders also accepted Certificates from draughtsmen and technicians acting for self-builders.

    This may not immediately inspire confidence, and I am not commenting on the design here, but the relative lack of catastrophic building failures in self-built housing stock certified in this manner tells the tale.

    Looking back over the last decade, it is obvious a hysterical response to certification and a draconian response to building regulations were not needed. The local authority needed to shoulder its responsibilities.

    Someone is following an agenda, and given the uproar amongst its members, I don’t think its the rank and file of the RIAI.

    One question remains – who benefits?

    Reply
  2. Michael O'Neill

    I’d like to note the following in relation to Item 9.

    = = = =

    9 The professionals gave very limited guarantees because they were only paid for very limited involvement

    (as mentioned above partial service agreements, acceptable for conveyancing, required cursory independent professional involvement in projects, in some instances none at site-stage. No registration of title meant that anyone could complete these certificates).

    = = = =

    Professionals do not give ‘very limited guarantees’: they offer Opinions.

    Manufacturers offer guarantees. There is an argument that builders should offer them. Specialist suppliers – roofing systems for example – already do.

    Even with limited involvement, there were inclusions in the Opinions which should have offered comfort.

    The wording of the Architects Opinions as agreed previously by the law society and professional bodies offered assurances that were qualified as being based on visual inspection, unless otherwise noted.

    At the item on Schedule A Assurances were included ancillary certs from professionals covering each discipline.

    (There is a big difference between a visual inspection by a professional and one by a lay-person.)

    Periodic inspection on site is defined as the full service and opening up works. This was not provided on Priory Hall I understand.

    Architects also accepted certificates for the Built Work from the Main Contractor, Sub-Contractors and Specialist Suppliers, etc.

    These, where included, gave additional comfort in relation to the building proper, as opposed to the design of it, and relied on the builders obligation in law TO BUILD IN ACCORDANCE WITH THE REQUIREMENTS OF THE BUILDING CONTROL ACT AND ATTENDANT LEGISLATION!

    The total package of certification was quite comprehensive and credible – IF a design team was appointed to take the building to site!

    That is ALL the New Regulations had to do! Force Developers and Contractors to use Professionals all the way through the building process!

    Simple! But too complicated for the former Minister.

    Instead his department drew up regulations that allow the Developers and Builders to hide behind the Straw man of the Assigned Certifier!

    Because now the Builder and Developer do NOT have to build in accordance with the Regulations made under the Act. They only have to build in accordance with the drawings. Their legal and criminal liability is fudged by the legislation brought in by the former Minster.

    Who benefits from this? Not the Public. Not the Professions. And arguable not the developers and builders either, who are beginning to accept that they have to up their game.

    Let me underline the implications of this legislation vs the old.

    The architect in the Priory Hall case rested on work done by persons of questionable competence. With possibly no role in the contractor’s vetting or selection process (with no competent main contractor?), his Opinion rested on work of unknown provenance.

    With no appointment to inspect during the works, the architect was disempowered.

    With no local authority officer making even a cursory (15%) inspection rate, the public was disenfranchised in terms of its expectations of getting a product fit for purpose.

    Let me state this clearly in relation to the new regulations.

    The lack of oversight by the local authority leaves the professionals and the public at the mercy of the rogue developer and rogue of incompetent contractor. In the Priory Hall case, it appears that these two perpetrators came together in a single entity to create the perfect storm. Only an obligation to appoint a design team and build per the regulations AND local authority inspections could have solved this.

    Do we see an obligation to retain a design team on every project front and centre – arguably, yes.

    Do we see an obligation on the local authority to inspect and enforce standards – no, we do not!

    Are the people must likely to commit egregious crimes – rogue developers and builders – targeted by the new legislation – not at all.

    Will Priory Hall happen again? Possibly, but under the present legislation and penalties, its unlikely it will be certified by any sane person.

    A final note re Certification.

    The comment I cited states in brackets: “No registration of title meant that anyone could complete these certificates”.

    This is not the case. The law society was clearly advising its Members back in 1994 or thereabouts from whom they should accept certificates. The buck stopped with the conveyancing solicitors and more often than not, the solicitor acting for the lending institution.

    Certification was not accepted from just ‘anyone’, pre 1st May 2008.

    – Persons with 10 years experience in the building industry
    – Persons with prescribed qualifications in Architecture
    – Qualified Engineers

    At a National Level these Certifiers were all acceptable back in the day.

    At local level, Banks and local lenders also accepted Certificates from draughtsmen and technicians acting for self-builders.

    This may not immediately inspire confidence, and I am not commenting on the design here, but the relative lack of catastrophic building failures in self-built housing stock certified in this manner tells the tale.

    Looking back over the last decade, it is obvious a hysterical response to certification and a draconian response to building regulations were not needed. The local authority needed to shoulder its responsibilities.

    Someone is following an agenda, and given the uproar amongst its members, I don’t think its the rank and file of the RIAI.

    One question remains – who benefits?

    Reply

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