Legal Alert | Commencement Notices since 1st March 2014

legal alert

By BRegs Blog October 28th 2014

Hundreds of homeowners have been left in a legal mess following new advice from the government run Building Control Management System (BCMS). The RIAI issued the new BCMS advice to their Practice members at around 5 pm on Friday 24th October 2014 and Building Surveyor, Nigel Redmond, received the advice from the BCMS yesterday, 27th October (Link:).  This is 8 months after the new rules were introduced and means that many domestic extensions started since 1 March 2014 may be illegal.

The implications for homeowners are stark – there are no remedies under the new regulations and if the “commencement” (building start) was not correctly notified before work started there is no way back. While this situation may not prove to be a problem in the short term, as Building Control Authorities are unlikely to enforce the regulations in such instances,  this will be a significant obstacle for owners when they come to sell or finance their homes without the correct paperwork for an extension that is “unauthorised”.

It was generally understood that the new system which came in on 1 March last applied only to larger home extensions over 40 square metres (430 sq ft). However, almost eight months later, when hundreds of domestic extensions have started and finished around the country, the goal posts have been moved and all extensions to the house since 1964 are being counted cumulatively. So if your home had a new porch in 1965 then your extension in 2014, that you thought was exempt, may well be over the limit.

Professionals are divided over whether this BCMS interpretation is legally correct. Some legal commentators do not agree and believe confusion may have arisen in the interpretation of the very different Planning and Building Control legislation due to the commonality of the 40 square metre classifications.

Either way this is yet another significant oversight in drafting and it will add to professionals’ concerns that they have been put to work in an untested system that is proving to be a legal and practical minefield.

Extract from RIAI Practice News: 24th October 2014

The RIAI posed the following questions to the Building Control Management System:

Question: Can you clarify the circumstances in which an extension to a dwelling comes within the scope of the requirements for statutory certification under the Building Control Regulations?

Answer: In the case of an extension to a dwelling, the requirements for statutory certification of design and construction in line with the Building Control Regulations apply when the total extended area of the dwelling exceeds 40 square metres.   Every new dwelling has a permitted area determined by its planning permission.   Any works which extend the building by more than 40 square metres beyond this permitted area must be certified.

The regulations refer to the total extended area because separate extensions can be added to different areas of a building at the same time or different times.  It is therefore not possible to avoid certification requirements by building a series of small extensions each of which is less than 40 square metres but which together give a combined extended area greater than 40 square metres.

N.B. from RIAI
Existing extensions which are to be demolished and reconstructed must be added to the floor area of the proposed extension to the dwelling, and if the cumulative floor area of the demolished floor area (to be reconstructed) and the new extension exceeds 40 sq. m. then BC(A)R apply.

Question: Do loft/attic conversions come within the scope of the requirements for statutory certification?

Answer: The position regarding loft/attic conversions has not changed.  Loft/attic conversions do not therefore generally come within the requirement for statutory certificates.    Where upgrade works may combine a loft/attic conversion with an extension, it is the size of the extension only (i.e. not counting the pre-existing attic space) that would determine whether the requirements for statutory certificates apply.   The Department of the Environment, Community and Local Government has produced a guidance note on Loft/Attic Conversions.

Homeowners, builders and designers are reminded that the relevant requirements of the building regulations generally apply to works irrespective of whether the works are subject to any building control procedures.


Recently added advice on the BCMS FAQ

Links to earlier posts:

Catch 22 Commencements 

Owners may need a Certifier for a Porch?

“Dangling Participles” and why all extensions may now require compliance with S.I.9: 2014

NOTE: This series of posts is not meant to undermine or be in opposition to any professional advice from registered representative bodies: rather it is to offer additional technical aids to those that find themselves in the position of having to deal with S.I.9 in it’s current form at present. As with all information posted on the Blog we urge all practitioners to check with their respective professional bodies before assuming any roles or duties under Building Control (Amendment) Regulations (S.I.9 of 2014). 

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