40 sq.m Question | Review 5 – Readers’ Reactions

Q1 Interpretation        I graph

The BRegs Blog had its largest ever response from readers to the 40 sq.m. series of posts last week. We publish a selection of those comments received below and links to the previous posts. As part of the series we asked for readers’ interpretations of the SI.9 wording in relation to domestic extensions and the results may be seen in the graph above.

Chart_Q3_150127 (1)  Chart_Q5_150127

Worryingly over 70% of you are not confident of your understanding on the issue and 60% indicated that the confusion on the floor area interpretation for extensions is causing delays to building projects. As the final comment below puts it so eloquently: “it is now time for the stakeholders to finally get off the fence and Defend, Mend or call for an End to SI. 9”

Readers’ Comments:

  • Great to see such a clear and practical piece by Eoin O’Cofaigh on the 40 sq m issue. In my view it was always clear what was intended and I agree with Eoin’s conclusion. Jerry O’Connor
  • I write as a non-registered architect with over 25 years experience in private practice in the State.  Eoin O’ Cofaigh’s analysis is clear and correct.  I trust it will assist Minister Kelly in his review of S.I.9. Brian Montaut
  • As can be seen CLEARLY 40 sq.m. is not cumulative. This nonsense now has to end. If you want 40 sq.m. on SI.9 to reflect the BCMS FAQ, you will have to amend SI.9.  Until then to uphold the integrity of the BCMS system the 40 sq.m. guidelines on the FAQ requires to be removed. Nigel Redmond
  • The wording is so sloppy it could mean any number of things. It could also be cumulative extensions after 1 March 2014 – some think attic and garage conversions have to be counted too. Anon.
  • Well argued as always. I have always been of the opinion that the purpose of exempting certain types of development/works is that without such exemptions even “relatively minor works and some unexceptional changes of use” quote from Garrett Simons Planning book – would be otherwise subjected to the full rigours of the statute/legislation. The object is to sensibly exclude and not maximise inclusion. In the above context, the matter is simple – extension is referred to in the singular. From past and even recent experience (over a period similar to you) I have regularly found that some officials, in applying regulations, work on the basis of what they think or what they would like to be in the legislation and not what is actually written. We as practitioners are often forced to make a commercial/non delaying decisions on behalf of our clients, risking the questioning of our competence, to accept the incorrect interpretation and perpetuate the error long after the honeymoon period for the absorbing of new procedures has passed. I cannot understand why a clear directive has not been forthcoming to date. Paul C. Mealy
  • Although the BCMS position is “official” I  have advised clients that it seems ridiculous (with the caveat that I am not a lawyer) and ask them if they want to proceed on the plain English interpretation? The clients just gave up and went elsewhere. If we cannot advise clearly, what client would trust us? Anon.
  • SI.9 says that the significant requirements of the instrument do not apply to
    “an extension to a dwelling involving a total floor area greater than 40 square meters”,
    Could it be simpler??    How can anyone complicate it?? About the only possible complications I can see is the argument that 2 contemporaneous extensions on opposite side of a dwelling could each be exempt, or, possibly more realistically, whether “credit” can be taken for any area demolished and replaced by an extension, or whether the footprint of a removed, and previously external, wall counts towards the 40 sq.m, but inclusion of previous extensions is no more justifiable or legal than, say, BCAs deciding to impose arbitrary limits of the height/colour/materials, etc., of a 40m² extension.   Any non-statutory (and it is non-statutory) limitation imposed by a BCA or by the BCMS management is entirely ultra vires and of no standing. Nial Murphy
  • The BCMS interpretation is outlandish. I would think though with the wording perhaps several extensions could be built at the same time if not connected to each other. Perhaps a bigger issue is the definition of floor area or building. Is the last triangle of space under an attic floor area? Is a 900 mm high deck a building? Does a roof on four posts have a “floor area”? Anon.
  • Just a short note of thanks to the BRegs team for this series of posts. One or two thoughts came to mind while reading it. Maire Phelan of the BCMS in her article in late 2014 in the Engineer’s Journal claimed the new BCMS archive to be an invaluable real time archive and resource for Local Authorities. Now Building Control officers (at the touch of a button) could access the activities of builders throughout the country and keep track of their compliance record. In addition she claimed that the quality of the information submitted to the BCMS (since the act came into force) demonstrated an improvement in the level of compliance.This sounded strange as (to my knowledge) Local Authorities do not have a statutory duty to check the submitted documents for compliance (in the sense that a Fire Officer would) – or as a Building Control Officer would in Northern Ireland. My thought at the time was that people purchase bricks and mortar and not a set of construction documents.Hence the existence of a set of swanky documents in a national archive proves nothing (with respect to compliance). My thought for today is that an archive which does not even hold on file extensions up to 40 square metres proves ‘less than nothing’. In 10 years time what will be our national record of compliance on the one building type that quite possibility affects every family in the country? Zero. So how great can this new archive claim to be? Andrew Alexander MRIAI
  • No one can clarify this under its current wording. Anon.
  • The implementation or other of SI.9 (bells and whistles approach) should be based not on any arbitrary accumulation of projects, but on each individual projects size. Each and every extension to a domestic unit under 40 sq m should be exempt. We are so used to coming from the point of cumulative extensions requiring planning permission, and rightly so, that its almost subconscious that we accept cumulative as being acceptable. But it should not be really. Why would one extension of 39 sq m carried out to a dwelling in 2018 be any more requiring of the bells and whistles approach as a 39 sq m extension in 2017? None really – standards will be identical. Adrian Hennessy
  • Why on earth would the fact that a 40 sq.m. extension way back in 1965 or 1995 mean that you had to submit a Long Commencement Notice for a 3 sq.m. extension? Anon.
  • My experience last week when vetting a potential contractor and visiting his work in progress it was noted that steps had been boxed for at the front door. His answer was that the owner was not going to sell (I.e. not if it is not for sale Building Regulations are apparently optional) . And when it came to the PSCS role I was asked “what is that?”. If the general ignorance in the building trade is to be rooted out enforcement is need in particular at the domestic and small works end. There is a major issue when specifications and drawings are routinely ignored and I am reduced to describing insulation as “the grey stuff” to be understood. The dogs on the street know there is almost no council inspection and enforcement and leaving it to the professionals to fill this void with the likes of SI. 9 is equivalent to making Tony Soprano hire licenced security guards in order to stop the ongoing issue with murders at Bada Bing. Lester Naughton
  • Without a consensus or legal precedent, I cannot be sure. Anon.
  • The planning legislation only allows a cumulative extension or extensions of 40 sq m. since the date of Grant of Permission. However if the house was built “Pre-63″ and is without permission, the area of the house around that time is deemed to be the relevant status. Thus, one may be reduced to trawling through old photographs, legal papers, title deeds, other people/s permission and the holy grail of historical planning analysis – the Ordnance Survey Map – in order to determine the original plan outline of a property going back that far. There is a difficult principle already invoked under the Planning Regulations. Referring to this when assessing the Building Regulations wording gives cold comfort because it is clear that the degree of difficulty of historical assessment is immaterial. The intent of the framers legislation is the issue here. We await confirmation from the DECLG of that intention with bated breath. Michael O’Neill
  • Planning defines WHAT we can build, the Building Regulations define HOW we build. Personally I am not that supportive of exemptions for built work, given what we see around us. As someone who has carried out numerous inspections of private dwellings for prospective purchasers I can confirm that some of the most egregious faults come from small extensions. Anon.
  • It is my personal opinion due to the poor drafting of what defines a 40 sq.m. extension under SI.9, that its true meaning cannot be defined with certainty.  If this were clear and absolute, this debate would have been ended months ago. Instead, the BCMS fueled this debate by posting a disingenuous and highly questionable revised FAQ on the BCMS regarding what defines a 40 sq.m. extension.  To me as an Assigned Certifier, this was the final straw and this publication ended any confidence I have with SI. 9:2014.

    With all the numerous well documented problems with SI.9, (self build, extensions, multiple developments etc) the BCMS / DECLG have and continue to desperately cast about for any plausible answers to these problems bar the truth, which is self build, extensions & multiple developments etc., cannot be legally complied – with absolute certainly – without a statutory revision. Almost 12 months later, SI.9 has now become so pathetic, Assigned Certifiers still do not know the simple ABC’s of these regulations – such as what defines a 40 sq.m. extension. SI.9 is now the poster boy of bad law within the Building Industry.

    While the stakeholders who negotiated SI.9 appear to suffer from post SI.9 denial syndrome and refuse to acknowledge that a bags was made of SI.9, they are open to accusations of compounding the problem further through their virtual silence on the matter.  This IMO may have created the dangerous impression to some, that they have sided with the DECLG and not their fee paying members and therefore this is a potential major banana skin to their good reputation and loyalty.  IMO they need to be vocal and communicate decisively to their members as to where their priority lies.

    The stakeholders now have a simple choice.   Is it the livelihood of their members, or is the reputation of a few individuals (mainly in the DECLG and further a field), more important?  The stakeholders cannot continue to think like poets and act like professionals.

    It is now time for the stakeholders to finally get off the fence and Defend, Mend or call for an End to SI.9.

Links to previous posts on this issue:

O’Cofaigh | Applicability of PROVISIONS OF S.I.9 of 2014 to house extensions

40 sq.m. Question | Review 3 of the Issues | 22 January 2015

40 sq.m. Question | Review 2 of the Issues | 20 January 2015

40 sq.m. Question | Review 1 of the issues | 19 January 2015

When is an extension not an extensions: the 40 sq.m. question 

 

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