Applications for dispensation or relaxation of Building Regulations

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The following opinion piece was submitted by Simon McGuinness DipArch, BArchSc, MRIAI, CEPHD November 25th 2014

Applications for dispensation or relaxation of Building Regulations

Given the recent ruling by the BCMS administrators in relation to the cumulative area calculation for 40 sq. m. extensions and the profound legal difficulties that have arisen for building owners and practitioners as a result, I feel it only right to bring to public attention a potential means to regularise the otherwise intractable, and unintended, legal conundrum this has been created.

There is a formal process established under The Building Control Act 1990, the principal act, for anyone (presumably including designers, design certifiers, building owners or assigned certifiers) to request a relaxation of any part of the Building Regulations from a Local Authority.  The procedure is outlined in Section 4 of the Act, as follows:

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BUILDING CONTROL ACT, 1990.

[…]

Dispensation or relaxation of building regulations.

4.—(1) Subject to the provisions of this section, a building control authority may, if it considers it reasonable having regard to all the circumstances of the case, grant a dispensation from, or a relaxation of, any requirement of building regulations in respect of buildings or works which are situated within the functional area of the building control authority and 

( a ) which are designed, constructed or carried out by or on behalf of the building control authority, or

( b ) in relation to which an application for such dispensation or relaxation has been submitted pursuant to subsection (2)

(2) An application for a dispensation from, or a relaxation of, any requirement of building regulations shall be made in the prescribed form, and any such application shall be accompanied by the prescribed fee (if any).

(3) Building regulations may provide that in respect of any specified requirement of the regulations, subsection (1) shall not apply.

(4) Where, within a period of two months beginning on the date of an application, or within such extended period as may at any time be agreed in writing between the applicant and the building control authority, the building control authority does not notify the applicant of the decision on the application, a decision by the building control authority to grant the dispensation or relaxation, as the case may be, shall be regarded as having been made on the last day of the period or such extended period, as the case may be.

(5) A building control authority may make a dispensation from, or a relaxation of, any requirement of building regulations granted pursuant to subsection (1) subject to such conditions (if any) as it sees fit.

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The Building Control (Amendment) Regulations, S.I.9 of 2014, specifically recognises the process by requiring relaxations and dispensations to be entered onto the BC(A)R register held by the Local Authorities:

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21. (1) A building control authority shall keep a register and shall enter in the register particulars of—

(a) any valid application for a dispensation or relaxation, including the name and address of the applicant, the date of receipt of the application, and brief details of a building or works forming the subject of the application

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It is not clear whether this aspect of the electronic BCMS has been activated as yet, but a paper-based system already exists, as envisioned in the principal act. It should be borne in mind that the electronic BCMS system is merely a convenience for Local Authorities in fulfilling their duties under the building regulations, it is not in any way a prerequisite of either the regulations or the principal act.

In the broader context of the need for absolute certainty, as envisioned under S.I.9, 2014, designers of buildings might usefully employ the dispensation/relaxation process to mitigate their risk for other matters that, however well considered, may not be appropriate for adjudication at the level of absolute certainty.

Disclosure: I made one application for a relaxation of building regulations under this provision in relation to the handrail height in a historic building in 1998 (or was it 1999?).  I am still waiting on a response.  Given the wording of sub-section (4), I took this to be confirmation of a dispensation having been granted by default and was happy to issue an Opinion on Compliance accordingly, once the date had passed. The handrail in question was almost 200 years old, of carved Brazilian walnut and was 20 mm below the requirement for a public staircase. I did not consider the cultural vandalism involved in adding a brass rail to be worth the effort for the sake of 20 mm, especially since there was no record of an injury to a member of the public having occurred in all that time.  However, nor did I consider myself, a mere architect, competent to make such an important decision in relation to public safety and was grateful to have been relieved of the burden by the local authority.  I may have neglected to thank them at the time and now offer Galway City Council my belated thanks.

As far as I can remember, there was no proscribed fee for requesting a relaxation of building regulations.

Finally, I would recommend that any such application be sent by recorded delivery.

Simon McGuinness DipArch, BArchSc, MRIAI, CEPHD

Other posts of interest:

Attorney General asked if S.I.9 is in breach of Constitutional Rights

Letters to the (BRegs Blog) Editors: Simon McGuinness MRIAI 

Part L compliance – Who wants a building control service provided by cowboys?

Design Certifiers – 3 things about certifying Part L… 

Why the design certifier and architect need third party building fabric assessments

Opinion piece: new building regulations and materials risk analysis

SI.9 and Part L | Specialist ancillary certifiers Part 2

SI.9 and Part L | Are specialist ancillary certifiers needed? Part 1 

Dispensations and Transition Arrangements

Practical Post 10: No retrospective compliance – BC(A)R SI.9

Practical Post 13: Duties & conflicts- BC(A)R SI.9 

2 thoughts on “Applications for dispensation or relaxation of Building Regulations

  1. AC

    Unfortunatly this approach should not work as the provision to apply for a dispensation/relaxation only applies to the “Building Regulations” and not from the “Building Control Regulations”

    They are 2 differnet pieces of leglislation.

    ie, you can apply to have a dispensation from say Requirement B4 – external fire spread ……….. but you cant apply for a dispensation from the Control regulation’s requirement to submit a FSC.

    PS …………. there is a fee of €250 odd

    PPS,

    Just as there is nothing in the regulations which says that the “principal or director of a building company” does not apply if the builder is not a company, there is nothing in the Control regulations which says that the 40m2 is Cumulative.

    If you carried out an extension 20 years ago, how is it “involved” in the works now being carried out ????????

    9(2) .. The requirements of paragraph (1)(b) [ie to submit a long CN] shall apply to the following works and buildings…….

    (b) an extension to a dwelling involving a total floor area greater than 40m2

    …………if you are carrying out a 20m2 extension then

    (a) “the works” involved are only 20m2

    (b) If you wanted to somehow argue that the 40m2 “involved” areas other than the “an extension” then they only way that you could read it would be that the 40m2 applied to the whole dwelling, such that any 40m2 house being extended needed a long CN ….”….a dwelling involving a floor area greater than 40m2″

    (c) If they wanted the 40m2 to apply to previous extensions, it should have, but was not actually written into the regulations.

    Reply
  2. Andrew Alexander MRIAI

    Following from AC’s contribution it could be said that source of confusion on the 40sqm limit is not the regulations per se but rather the ‘subjective’ opinion offered by the BCMS administrators in response to a questionnaire.

    Reply

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