Have residential Completion Certificates been fully considered?

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Jenga” by Jorge Barrios

The following opinion piece was sent to us on 3rd December 2014 by Michael O’Neill in relation to the post “Completion Certificates for Multi-unit Housing ” earlier in the week.

Overall Estate Completion Certificates.

Advice issued by the RIAI goes further and tells Assigned Certifiers to lodge another Completion Certificate for the overall development, to close off the Building Register file after multiple phased Completion Certificates have been lodged.”

This quotation from a recent post set me thinking. I am concerned that the legal liability of the person issuing Completion Certificates under the Building Regulations for the overall development of a housing estate or apartment complex may not have been fully considered. I am writing the below comment to hopefully provoke a useful discussion on this subject.

Why would an Assigned Certifier needlessly take on board liability under the Building Regulations by offering an overall Completion Certificate for elements of an estate which may not be covered by the Building Regulations?

Issuing an overall Completion Certificate may be required for an apartment block. I submit that this should be contemplated for an apartment complex only after careful consideration. I submit that this is not appropriate for overall housing developments and should be avoided.

I will qualify this by suggesting that the “overall” Apartment Block Completion Certificate should be limited to those areas of an Apartment Block or Complex which are directly covered by a Statutory Approval or Approvals which arise from the requirements of the Building Regulations. At the moment this means a Fire Safety Certificate or a Disability Access Certificate.

Matters which are not covered by these Statutory Approvals should be excluded from any “overall development” Certificate of Completion issued under the Building Regulation. All other areas should be covered either by an Opinion of Compliance with Planning Permission or an Opinion on Exemption from Planning Permission.

Why?

Building Regulations and Planning Permission are two related bodies of law, but as the recent 40 sq m House Extension debate has shown, they are not directly related. Planing permission tells us what we can build. The Building Regulations tells us how we can build certain things. A planning permission for a large estate of houses or apartments will encompass many more things than those covered by the Building Regulations.

Within the context of the Building Regulations there are many differences between multiple housing developments (the new term for housing estates) and apartment developments.

  • Houses do not need Fire Safety Certificates, Apartments and Duplexes do.
  • Houses do not need Disability Access Certificates, Apartments and Duplexes do.
  • Houses do not depend on other houses Completion for safe egress in a fire emergency. Apartments and Duplexes, which may abut common areas, whose boundaries may be formed by other apartments, and who may share corridor and stairs escape routes, do.
  • Houses are all effectively discrete units which populate a “housing estate”, Some are actually detached, some are separated from others vertically by separating walls known as party walls.

Apartments are generally built as part of an integrated building unit called an apartment block, sometimes itself part of a larger complex of buildings. They are separated both vertically and horizontally from each other and the common areas and escape routes by compartment walls and floors. They may share not only compartment walls on perhaps two sides but may abut common areas on a third side and may be separated horizontally from other apartments both above and below them. Apartment blocks are usually divided from one another by vertical separating walls and if they are built on the ground will have separate fire safety certificates for each block.

Therefore houses do not depend significantly on other houses’ completion for their own compliance with the Building Regulations. A semi-detached house can be left weathered in the absence of its partner, but I cannot recall seeing this on an Irish housing estate. Semi-detached houses and terraced houses are usually completed to a certain level all at the same time. Exceptions include sewers passing through adjoining sites and fire and soundproofing of party walls, eaves and roofs. In my opinion these points can be adequately covered in the individual house Completion Certificate and no reference may be needed to the wider estate in which the house is situated.

Apartments however do depend on other apartments for their own compliance – in terms of vertical and horizontal services duct completions, fire and sound rating of compartment walls and floors, structural stability and integrity, resistance to disproportionate collapse, etc.

So are there reasons for not issuing a Completion Certificate for the Overall Development of the Housing Estate or Apartment Block complex? Yes I believe there are.

  • Many builders will not complete housing developments properly. The same goes for apartment complexes. Items left incomplete can include but may not be limited to – the roof terraces, public open space paving, car parking, roads, external lighting, footpaths, grassed, planted and landscaped areas as well as the common areas and some of the services including swales and attenuation tanks.
  • Previous customary practice regarding the issuing of Opinions as well as current advice regarding Certificates seems to suggest that Completion Certificates for individual houses may be issued without reference to the Housing Estate as a whole. I seem to recall there was an exclusion term referring to “the estate of which it forms a part”.

I think it would be very unwise to try this approach with apartments. It is very difficult to leave apartment buildings themselves incomplete because of the interdependence of the units and their shared access and egress. Compliance with the Fire Safety Certificate demands that an apartment building as a whole must be compliant. This is because such Fire Safety Certificates are usually obtained for a whole block, and not individual apartments. However, elements, services or systems may be left incomplete or not commissioned.

Let me underline this – under the new regulations, certifying an apartment at any point before the block of which it is a part has achieved compliance with its statutory approvals would seem to be very unwise.

An apartment block is an integrated design. While an individual apartment may be first occupied at a different time than neighbouring apartments, all the apartments, common areas, fire stairs and escape routes fire safety, detection and alarm measures must be complete at that time. The compliance of the other apartments and elements are required to ensure that the block as a whole is in compliance with its Fire Safety Certificate when the first apartment is occupied. Is this requirement always observed? Not in my experience. A Completion Certificate for an Apartment Block may improve matters. However human nature may still intervene, as it used to do on housing estates.

A housing estate is different. Matters outside of the Houses – the completion of a housing estate’s boundary walls, garden walls, landscaping, footpaths, roads, public lighting, civil works and services in general – are ultra vires the Building Regulations. These matters are covered by the Planning and Development Acts and Regulations.

Many Architects’ Opinions have been issued on houses where the services were tested using various standalone methods before being connected to a permanent supply and the estate was not finally paved or garden plot boundary walls fully completed.

Much of this practice developed to assist with a builders cash flow, and much of the external areas services and finishing work was held back to avoid damage by Heavy Vehicles during the ongoing building works until after the completion of civil works.

I am not excusing such practices. I am stating that the instrument of the Architect’s Opinion was usually issued to trigger a purchase and this facilitated the subsequent completion, the sequence of which was logical, for the builder at any rate.

I doubt whether this established sequence of events will be overturned by the issuing of Completion Certificates for each house. The new regulations suggest that the point of will tak place at some point after the issue of a Completion Certificate. This seems the least likely outcome of the new legislation. I think that the unregulated market led by rogue clients builders and developers will decide when the sale will occur – just as it did during the boom years, when houses were bought off the plans without being inspected or certified.

This of course will make a nonsense of the whole point of the Building Regulations and is entirely foreseeable.

Only by making the Rogue Client/Developer/Contractor responsible for the Completion and Compliance of the actual buildings being offered in sale – and ensuring that completion occurs by them PRIOR TO SALE – with independent checks by the Local Authority Building Control Officer during the works – is there a chance that real assurances can be offered to the Consumer in relation to the built work.

So there is an argument for issuing an Overall Completion Certificate for an apartment Block.

There seems to be good reason not to issue such a cert for an Apartment complex as a whole, where the civil and public works are unlikely to be subject to the Building Regulations or the statutory approvals based on them..

But as for issuing a Completion Certificate for an entire Housing Estate? No. That assumes a liability that goes beyond the subject matter of the Building Regulations and into the realm of the infrastructural, civil and public works covered by the Planning Permission.

It is my belief that any Certifier would be most unwise to expose himself to the current liability and penalties under the Building Regulations by including matters in any Completion Certificate which do not fall under the Building Regulations legislation.

Other posts of interest:

Completion Certificates for Multi-unit Housing 

Practical Post 19: Phased completion & BC(A)R SI.9 

BCMS Completion Stage | No Ancillary Certificates required!

BCMS Alert | Last day for Christmas Completion!

ALERT | SI.9 Christmas Completion Countdown

SI.9 causing major delays to school projects

Imminent changes to SI.9 announced | Minister Alan Kelly T.D.

SI.9 completion stage and the BCMS | Clouds are gathering!

5 Tips for Completion Certs

Build in 8 hours, wait 3 weeks for a Completion Cert!

Press: RIAI fearful Local Authorities will start “finding something to invalidate as a method of workload control”

Are Local Authorities ready? Industry concern for completion stage: BC(A)R SI.9 of 2014

4 thoughts on “Have residential Completion Certificates been fully considered?

  1. Andrew Alexander MRIAI

    Michael,

    Thank you for your considered opinions.

    Your post has prompted me to re-read how the previous post describes the advice from the RIAI and what jumps out is an assumed requirement ‘to close off the Building Register file’.

    I can only presume that closing off the register is related to an assumption that the entire development may have been spawned from a single commencement notice. As a commencement notice in the old days referred to a Planning Permission number it may have been assumed that one Planning Permission number begat one commencement notice which in turn leads to the opening of a Building Register which in itself must ultimately be closed.

    Now, does the legislation insist that a housing estate should have one commencement notice – even if it is all connected to one Planning Permission number? Presumably the reality is that not every house commences on the same day. The only party benefitting from the submittal of a single commencement notice is the builder / developer however why should life be made even easier for them if such an approach ultimately raises the Certifiers liability to even higher levels?

    If the legislation does not insist that a multi-unit development should have one commencement notice then we are into another grey area similar to the 40sqm debacle. If this is the case then the RIAI should write to the Department for clarification and / or advise its members to avoid submitting a single notice for the commencement of housing estates and instead restrict themselves to the submission of separate notices for the individual houses within a development and to inform their clients accordingly (prior to their appointment as Certifier). Consequently when each individual house is complete the building register can be closed for that particular commencement notice.

    I get the feeling that this issue has less to do with examining the legislation and more to do with retrospectively papering over the cracks of the creaking edifice that it SI.09. (It all leads me to believe there should be a Assigned Certifier in Parliament itself – signing off on legislation before it gets to the statute book – or at least they could have run a pilot project in one or more counties as a trial before bringing SI.9 into force).

    I stand corrected if any incorrect assumptions above invalidate any suggestions made.

    Once again Michael, thank you for your contribution.

    Reply
  2. Andrew Alexander MRIAI

    Michael,

    Thank you for your considered opinions.

    Your post has prompted me to re-read how the previous post describes the advice from the RIAI and what jumps out is an assumed requirement ‘to close off the Building Register file’.

    I can only presume that closing off the register is related to an assumption that the entire development may have been spawned from a single commencement notice. As a commencement notice in the old days referred to a Planning Permission number it may have been assumed that one Planning Permission number begat one commencement notice which in turn leads to the opening of a Building Register which in itself must ultimately be closed.

    Now, does the legislation insist that a housing estate should have one commencement notice – even if it is all connected to one Planning Permission number? Presumably the reality is that not every house commences on the same day. The only party benefitting from the submittal of a single commencement notice is the builder / developer however why should life be made even easier for them if such an approach ultimately raises the Certifiers liability to even higher levels?

    If the legislation does not insist that a multi-unit development should have one commencement notice then we are into another grey area similar to the 40sqm debacle. If this is the case then the RIAI should write to the Department for clarification and / or advise its members to avoid submitting a single notice for the commencement of housing estates and instead restrict themselves to the submission of separate notices for the individual houses within a development and to inform their clients accordingly (prior to their appointment as Certifier). Consequently when each individual house is complete the building register can be closed for that particular commencement notice.

    I get the feeling that this issue has less to do with examining the legislation and more to do with retrospectively papering over the cracks of the creaking edifice that it SI.09. (It all leads me to believe there should be a Assigned Certifier in Parliament itself – signing off on legislation before it gets to the statute book – or at least they could have run a pilot project in one or more counties as a trial before bringing SI.9 into force).

    I stand corrected if any incorrect assumptions above invalidate any suggestions made.

    Once again Michael, thank you for your contribution.

    Reply
  3. Michael O'Neill

    Andrew,

    Thanks for delving even deeper into the implications of the Register in this regard. I think we will all in the near future need to take a Black Letter Lawyer approach to the relevant legislation to fully answer your question, which is no small task. This means reading the legislation line by line and discussing the implications of its demands and inconsistencies.

    There is an argument that we could wait until a case comes to Court and read the Judges decision and reasons for the decision. However it is preferable to come to an understanding of the implications prior to someone being sued, especially when the legal liability is draconian and eternal.

    In the meantime…

    Yes, a Commencement Notices were lodged on foot of a Planning Permission as you describe. This is one of the few crossing over points between Planning Legislation and Building Control Legislation. In this case the Commencement derives part of its provenance from a previously granted permission. Disability Access Certs and Fire Safety Certs may also require notification of the Planning Permission.

    With a multi-unit and multi-phase estate there may be more than one commencement notice issued, to kick off the separate phases of development. Heretofore, the phases have related in the developers mind to batches of houses, not to the rest of the estate, and to starting the building work, not to completions. Again I do not justify this. That is the way it was.

    A degree of overlap therefore is likely in terms of the beginning of Phase Two and the Completion of Phase One. In terms of the individual house certs, there seems to be no problem, but this adds to the woes of Assigned Certifiers contemplating certifying the ‘overall development’ because finishing items will simply not be done until all the estates is completed.

    An estate is usually commenced by getting the Show House and indeed the first road on which it is situated, completed to help market the scheme. At least, this is how it was done when people used to buy finished houses, as opposed to buying ‘off the plans’. Often the demand for house types may drive the completion of the rest of the estate, depending on which parts have which house types.

    This is particularly important to note on two levels. During the middle of the project, you can have multiple phases with some house types completed but no one phase of the development entirely complete. It would be holly unreasonable in my view to expect buyers who were prepared to pay to wait on the completion of the ‘overall development’ before they could move into their new home.

    However given the perfectionist nature of the new building regulations, as well as the suggestion that an ‘overall development’ Completion certificate should be offered, someone may assume that this means the whole estate should be finished before one house is occupied. As I pointed out above, houses in Housing Estates, even phases of estates, are not as intimately bound together as apartments in an apartment block.

    As for the Commencement Notices, they become more complex when the developer finds that one house type or another is not selling well and decides to seek a revised planning permission. This may result to variations of the house types and in some cases amalgamations of actual house plots that were previously permitted.

    Under the previous regime this would not have raised concerns, but with the new regulations, might these revised house types need their own commencement notices, which in turn might not accord with any intended phasing envisaged by the first phased permission. These new house types might be scattered all over the estate and might in themselves constitute a new, dispersed phase. It is unclear how this provenance might be reflected in any Completion Certificate for the overall development.

    Similarly where the planning permission may have been extended due to a provision of statute or a request for planning extension after a long time in abeyance where work had actually stopped, the local authority may advise the developer to ‘re-ignite’ the development with a new Commencement Notice.

    Thanks once again for raising this issue.

    Reply
  4. Michael O'Neill

    Andrew,

    Thanks for delving even deeper into the implications of the Register in this regard. I think we will all in the near future need to take a Black Letter Lawyer approach to the relevant legislation to fully answer your question, which is no small task. This means reading the legislation line by line and discussing the implications of its demands and inconsistencies.

    There is an argument that we could wait until a case comes to Court and read the Judges decision and reasons for the decision. However it is preferable to come to an understanding of the implications prior to someone being sued, especially when the legal liability is draconian and eternal.

    In the meantime…

    Yes, a Commencement Notices were lodged on foot of a Planning Permission as you describe. This is one of the few crossing over points between Planning Legislation and Building Control Legislation. In this case the Commencement derives part of its provenance from a previously granted permission. Disability Access Certs and Fire Safety Certs may also require notification of the Planning Permission.

    With a multi-unit and multi-phase estate there may be more than one commencement notice issued, to kick off the separate phases of development. Heretofore, the phases have related in the developers mind to batches of houses, not to the rest of the estate, and to starting the building work, not to completions. Again I do not justify this. That is the way it was.

    A degree of overlap therefore is likely in terms of the beginning of Phase Two and the Completion of Phase One. In terms of the individual house certs, there seems to be no problem, but this adds to the woes of Assigned Certifiers contemplating certifying the ‘overall development’ because finishing items will simply not be done until all the estates is completed.

    An estate is usually commenced by getting the Show House and indeed the first road on which it is situated, completed to help market the scheme. At least, this is how it was done when people used to buy finished houses, as opposed to buying ‘off the plans’. Often the demand for house types may drive the completion of the rest of the estate, depending on which parts have which house types.

    This is particularly important to note on two levels. During the middle of the project, you can have multiple phases with some house types completed but no one phase of the development entirely complete. It would be holly unreasonable in my view to expect buyers who were prepared to pay to wait on the completion of the ‘overall development’ before they could move into their new home.

    However given the perfectionist nature of the new building regulations, as well as the suggestion that an ‘overall development’ Completion certificate should be offered, someone may assume that this means the whole estate should be finished before one house is occupied. As I pointed out above, houses in Housing Estates, even phases of estates, are not as intimately bound together as apartments in an apartment block.

    As for the Commencement Notices, they become more complex when the developer finds that one house type or another is not selling well and decides to seek a revised planning permission. This may result to variations of the house types and in some cases amalgamations of actual house plots that were previously permitted.

    Under the previous regime this would not have raised concerns, but with the new regulations, might these revised house types need their own commencement notices, which in turn might not accord with any intended phasing envisaged by the first phased permission. These new house types might be scattered all over the estate and might in themselves constitute a new, dispersed phase. It is unclear how this provenance might be reflected in any Completion Certificate for the overall development.

    Similarly where the planning permission may have been extended due to a provision of statute or a request for planning extension after a long time in abeyance where work had actually stopped, the local authority may advise the developer to ‘re-ignite’ the development with a new Commencement Notice.

    Thanks once again for raising this issue.

    Reply

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