Construction Law Update: Phased by BCAR? | Mason, Hayes and Curran

legal-advice-illinois-1024x681

by BRegs Blog

The complex difficulties faced by developers in applying Building Control Regulation BC(A)R SI.9 to multi-unit developments, and phased completion in particular, was issued by Solicitors Mason, Hayes and Curran on 3rd June 2015. For link to webpage click here.

This follows earlier concerns raised by Arthur Cox Solicitors (see link here) and anecdotal evidence that many in the legal profession are having difficulties advising their clients about how to comply. The BCMS (Building Control Management System) issue a consultation paper last November (see link here) highlighting many of the problems and it is surprising that this problem has not been included in the current Ministerial review.

Extract:


 Construction Law Update: Phased by BCAR?

03 June 2015

It is now over a year since the Building Control (Amendment) Regulations 2014 came into force, and building industry players by now should be fully engaged with the compliance, inspection and certification regime enacted.

By way of re-cap, the Building Control (Amendment) Regulations 2014 (“BCAR”) introduced a range of measures affecting applicable developments[1] at the commencement, construction and completion stages, with implications for owners, builders, designers and certifiers as the lines of responsibility for design, construction and assessment of works were formalised.

An emerging issue arising out of the BCAR’s enactment, which has caused uncertainty on some commercial developments, concerns the concept of phased completion.  The BCAR does contemplate a phased completion linked to a single commencement notice occurring, and states: “A Certificate of Compliance on Completion may refer to works, buildings, including areas within a building, or developments, including phases thereof … 

The Code of Practice also states: “For buildings that are completed for occupation on a phased basis for example houses or apartment blocks, it is appropriate that Certificates of Compliance on Completion for each phase may be submitted separately… in such circumstances, one or more certificate of compliance on completion may be referenced to a single commencement notice.  All Builders and Assigned Certifiers signing Certificates of Compliance on Completion should clearly identify the precise building units or works to which it relates.  Where it is in order to do so, the Building Control Authority should accept the certificate for the particular phase and place it on the register.

The complexity lies in that phrase – “where it is in order to do so” – and how it is to be interpreted, noting that the BCAR requires that a Certificate of Compliance on Completion must be accompanied by documentation which outlines how the works or building as completed “complies with the Second Schedule of the Building Regulations”.  This schedule includes compliance requirements for typical whole-of-development concerns such as fire safety, structures, drainage and waste disposal, access, and ventilation.

In the absence of more specific guidance, one approach some developers have adopted is to assume that a Certificate of Compliance on Completion will only be validated where the works to which the Certificate relates – whether an area of a building, or a phase – complies with the BCAR on a stand-alone basis.  To achieve this, the particular works, at the time of the certification, must address and comply with the separate requirements of the Second Schedule of the Building Regulations (Parts A to M) relevant to the works or building concerned.  The upshot, from a project planning perspective, is that the construction programme might need to allow for certain works to be built and incorporated into the overall works at an earlier or advanced stage (including, e.g. temporarily during the shell and core works phase).  This will enable subsequent phases to comply fully with the Building Regulations.  Implied here is an acknowledgement that there is likely to be some interdependence of services, facilities and structures within a building or works, and some interrelation between the phases, impacting compliance at several points.

Comment

Although this is ultimately a completion issue, it raises challenging questions for project teams at the pre-commencement stage, and also has consequences for prospective purchasers and tenants, who may not be permitted to open, occupy or use a building or works until the relevant Certificate of Compliance on Completion has been validated, potentially giving rise to time and cost implications under forward agreements and trading arrangements.

The BCAR is an evolving piece and careful consideration should be given to structuring projects to maximise compliance with it, addressing risk contractually from the outset, and understanding your obligations as they apply to you.

For more information, please contact a member of our Construction team.

[1] (i) The design and construction of a new dwelling; (ii) an extension to a dwelling greater than 40 square metres; and (iii) works to which Part III of the Regulations apply (i.e. works requiring a fire safety certificate).

Other posts of interest:

Legal Advice for Multiple Unit Development Completions | Arthur Cox

Help the BCMS Christmas appeal | Certificate of Completion Crisis!

SI.9 “each phase should be designed to stand alone” | BCMS

Have residential Completion Certificates been fully considered?

Completion Certificates for Multi-unit Housing

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

5 Tips for Completion Certs

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

Residential completions continue to stall | Department of the Environment

Dáil: Fall in Housing Construction following introduction of Building Control Regulations

SI.9 – the ‘Red Flag Act’ for construction?

2 thoughts on “Construction Law Update: Phased by BCAR? | Mason, Hayes and Curran

  1. Michael O'Neill MRIAI

    “The BCAR is an evolving piece…”

    No, it isn’t.

    BCAR is a rancid piece of legislation written by desk jockeys to protect rogue developers by hanging the Certifiers with unwarranted and unlimited liability in the pursuit of perfection in building, which no one asked for.

    BCAR is a degenerative, fascist piece of legislation designed to put sole traders and small companies out of business, instead of bringing the corrupt heads of big companies to court and hopefully to prison for their criminally negligent building practices.

    Reply
  2. Andrew Alexander MRIAI

    At a time when the priority of the Minister is to drive down the costs of Certification it was quite striking that Mr. O’Connor’s BCMS paper in November included some opinions which (while understandable and logical) could only lead to increased costs and overheads for owners and certifiers.

    The following is quoted from this paper;

    “The BCMS team is currently considering the assembly of guidance for
    Building Control Authorities (BCAs) for means whereby they can assess if
    phasing – submitted as part of Commencement Notice applications for multiunit developments – includes sufficient consideration for compliance of units
    for disposal in the overall development or in each phase as proposals for
    phasing are submitted.”

    This is over and above the guidelines for local authorities at present where upon receipt of the commencement notice the code of practice states that local authorities should only take note of the risk associated with the prospective development. If local authorities move to assess whether the phasing has been properly considered they would (in my opinion) be venturing into the sphere of technical assessment. SI.09 does not allow for this. In the text of SI.09 there is no allowance for either technical assessment of commencement notices by local authorities and indeed no mention of any risk assessment which only appears in the Code of Practice which begs the question – is the Code of Practice a statutory document?

    The paper goes on to state:

    “It is fundamentally in the interest of the Owner, the Builder and the Assigned
    Certifier that they carry out such evaluation at the earliest stage of scheme
    design”

    This will result in increased costs to the owner in Assigned Certifier’s fees – how many meetings will this take? How much hand holding will this involve? Will it involve a pre- commencement notice meeting with the Local Authority? How can this be quantified at the outset? What if the market determines a change in the phasing based on commercial rather than technical considerations.

    And further states;

    “The Building Control Authority may, at its discretion, judge that such
    consideration is not evident and judge that the application to be invalid – on
    the grounds that it will include parts of development that, of themselves, will
    be non-compliant on completion – as a consequence.”

    More uncertainty for the owner and more fees and overheads for the Certifier. We are moving into the ‘black arts’ usually associated with the planning process – visiting the local authority to make sure they are happy in advance with the proposal – will there be an officer available? How certain will they be of the advice they give? How many times will the commencement notice have to be made before it is validated?

    Such a development is another obstacle to the viability of development and an example of the the increasing of costs arising from BCAR. Such an obstacle could more harmful than act of raising of standards in Dun Laoghaire Rathdown – a proposal to which the Ministers have already voiced their opposition.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *