To mark the first 12 months of the BRegs Blog, and the occasion of this our 700th post, we are publishing the first in a series of 7 information papers that were issued by past presidents of the representative body for architects (RIAI) towards the end of 2013. These have not been posted before. SI80 in an earlier version of SI.9 which was implemented in March 2014. These papers contain informed analysis and are still very relevant to the current situation, nearly 9 months post implementation of SI.9. Thanks to all our readers who have visited the Blog over 213,000 times in our first year and to all of our contributors who have made the BRegs Blog the go-to source for information on building regulations in Ireland.
Paper No 1 to follow:
RIAI Past Presidents Paper #1 | The Building Regulations and Consumer protection
Building Control (Amendment) Regulations, 2013
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The Royal Institute of the Architects of Ireland
Information Paper No. 1
The Building Regulations and Consumer protection
In the wake of the Priory Hall and pyrites scandals, the Government introduced amended building control regulations. These come into force on 1 March 2014. The regulations fail to incorporate key attributes of an effective building control system, and ignore relevant recommendations in the Pyrite Panel Report. They will also fail in the Government’s stated goal of strengthened consumer protection in building design and construction.
1 A building regulations system, and consumer protection
Real consumer protection involves (a) better buildings, to reduce construction defects; (b) proper policing of design and construction; (c) a speedy, straightforward and effective system of redress where things go wrong. Having called for over 20 years for a proper inspection regime on the part of building control authorities, in the lead-up to the 2013 regulations, the RIAI identified six key attributes for effective building control:-
- Real (and not token) involvement by building control authorities in inspecting designs and in visiting construction sites to inspect the work;
- A statutory register of building contractors, including subcontractors, to underwrite their competence;
- Certificates of compliance for design and construction, with liability correctly aligned with the responsibilities and inputs of everybody involved in the project;
- A standardised national system for electronic lodgement of drawings, test certificates and specifications with the building control authority;
- Mandatory project insurance against latent defects, which would provide proper protection for consumers.
- A system of dispute resolution and feedback on construction problems to designers and contractors, to reduce recurring defects.
Despite well-sounding words (“move towards registration”, “seek expressions of interest”, “welcome a scheme of latent defects insurance”), the 2013 regulations incorporate none of the above and in consequence do not provide adequate consumer protection.
2 The building regulations, and the Pyrite Report
After the scandal of pyrite-contaminated fill, which damaged thousands of houses, the Government commissioned a report on the causes of the problem with recommendations on how to prevent its recurrence. Issued in June 2012, the Pyrite Report made recommendations on building control, registration of contractors, and project insurance. The appropriate mechanism for incorporating those recommendations into law is the building regulations. None of these recommendations have been implemented:-
Pyrite Panel Report recommendation 18:- “the system of independent inspections, carried out by the building control officers, should be strengthened to complement the mandatory certification process for buildings.” For the residents of Priory Hall, proper inspections by the building control authority might have made all the difference. The 2013 building regulations fail to implement this recommendation.
Recommendation 19:- Registration of builders: “A mandatory registration system for builders with specific requirements for appropriate insurance cover (supported by regulation). Registration of builders should require demonstration of technical competence, financial capacity and adequate insurance cover.” The regulations fail to implement this recommendation, but rely instead on the stated intention of the industry to set up a voluntary register of main contractors. There is no requirement within the regulations to use such a registered contractor.
Recommendation 21:- “Project-related insurance whereby cover for each specific project is available and adequate and is related to the project only.” A properly financed and regulated system of building project insurance for a fixed period of six or 10 years operates in most Member States of the EU. This is the most effective means of providing protection to consumers in cases where buildings go wrong, such as in pyrites-affected dwellings or for the Priory Hall residents.
The most acute of all the problems in recent years has arisen with dwellings built speculatively for sale. Where, as is often the case, a speculative development company is liquidated on completion of a project, distressed homeowners have no redress against the wrongdoer. Project insurance can overcome this scandal. However, the Government have not set up a statutory system and intend instead to rely on such systems being set up in the private sector, which may or may not happen.
3 Architects are not insurance companies
Announcing the regulations, the Minister for the Environment said:-“The mandatory certificates will be clear, unambiguous statements on statutory forms stating that each of the key parties to a project certifies that the works comply with the building regulations and that they accept legal responsibility for their work,” adding that “If anyone signs a statutory certificate for a building which subsequently proves to be non-compliant, they can be held legally liable for the consequences.”
The system requires the architect or engineer to certify full compliance of the entire construction, which they are expected to underwrite by means of their professional indemnity insurance. Unlike project insurance, which is paid for in a single payment up-front for a full six or 10 year defects liability period, professional indemnity insurance must be renewed every year. It therefore cannot be guaranteed to be in place when a defect becomes evident. Reliance on PI insurance offers no real consumer protection.
The extent of liability, and the volume of claims which authoritative legal opinion has identified will be made against professionals acting as “Assigned Certifier” under the regulations is likely to make professional indemnity insurance unavailable or unaffordable. Professionals will be uninsured and uninsurable, and salaried architects will be vulnerable to direct litigation. The result: no insurance at all: affords no protection to the consumer.
4 Self-regulation is no regulation
Instead of introducing a comprehensive set of reforms to the building control system, such as those promoted by the RIAI, the Government opted for a system devolving on one person, the “Assigned Certifier”, who must take total responsibility for the outcomes of the entire building process. This is to be the architect or engineer or building surveyor, who will be employed by the builder/developer and who is then expected to direct and control his employer, without the support of any state agency. The building control authority is reduced to acting as a repository of documents.
Just as has been tried unsuccessfully in other sectors, the State has opted for a system which transfers its own responsibility onto the private actors in the process. Recent experience in the banking, healthcare, food safety and childcare sectors – to name but a few – shows that light touch regulation or self-regulation does not work. The construction industry is no different from other sectors of economic activity in Ireland, indeed some would argue that it is more in need of proper regulation than many of the sectors which are properly regulated.
There has been no effective building control in Ireland for over 20 years and, instead, the State has relied on a weak form of self-regulation which has not worked. The consequences of this failed policy are abundantly clear and the need for reform was never more evident and timely. The State must face up to its responsibilities in this regard.
5 RIAI policy in the light of the above, and the need for an EGM
There is clear evidence that few if any of the primary elements of a proper building control system as sought by the RIAI will be in place when the new regulations come into force in March 2014.
The issue now for the RIAI is whether the system now proposed will be effective in improving the quality of construction and in protecting the public interest, and whether it is sustainable by the architectural profession.
These questions need to be discussed by the membership and it is for this reason that over 200 Registered Members of the Institute have requisitioned an Extraordinary General Meeting.
Eoin O Cofaigh,
Sean O Laoire
Dublin, 10 September 2013
BRegs Blog Footnote: The breg forum was set up due to industry concerns concerning BC(A)R in 2013. The forum was a non-representative industry group comprised of professionals intended to debate and analyse the unintended consequences of the proposed building regulations. The BReg Blog grew out of this interest group.