DECLG Report on the consultative process | SI.9 Review

Custom-House-Dublin-Port

6 August 2015

Phil Hogan (former Minister for the Environment) introduced controversial and wide-ranging Building Control Regulations in 2014. Following a recent consultation process instigated by Ministers Alan Kelly and Paudie Coffey as part of a BC(A)R SI.9 Ministerial Review, a report has just been published by the Department of the Environment (DECLG). Understandably the report itself is defensive of earlier Department policy and side-steps widespread media, consumer and industry criticism of SI.9. The report does not offer rigorous or detailed analysis of submissions, or make recommendations. Given the primary purpose of the review was to address costs, there is little hard information other than the suggestion of a structural engineer providing “all-in-one” design, planning, certifier and structural/ Part L services at a cost of €8,000 for a typical house. However the report does give an insight into the thought process and intentions of the DECLG officials who created BC(A)R SI.9 and their reaction to over 170 public submissions received. 

Given the range of submissions from across the public and private sector it is very surprising that there is no reporting of any issues beyond the “one-off houses” and domestic extensions. The commentary suggests “some industry stakeholders who were previously sceptical and opposed to particular features of S.I. No. 9 of 2014 have seen the benefit of its operation to date”

Concerns that have been raised about the current Ministerial Review include:

  • The scope and format of the Public Consultation is very narrow and limited to once-off housing and extensions only
  • Significant SI.9 costs and SI.9 problems for other commercial and state-funded building types are outside the scope of the review
  • Professional Liability and Professional Indemnity Insurance which are the fundamental basis of SI.9 have been glossed over
  • Legal problems in multi-unit residential projects and illegal developments are not addressed
  • Increased costs in capital development and commercial projects as a result of SI.9 are not addressed

In the absence of any concrete recommendations and conclusions in the report and pending revised regulations, the industry and consumers are left with further uncertainty. Families waiting to “get out of the ground” before the winter with their own once-off homes cannot now move forward until further details of any exemptions or “parallel process” are published.

Link to full 31 page report: A copy of the Report on the Consultation Process is available here.

Download PDF: DECLG Report on Consultation process (BCAR SI9 REVIEW)

A DECLG press release accompanied publication of the report:”Ministers Coffey and Kelly ease application of Building Control Regulations for single dwellings houses and extensions News – DECLG

Some extracts from the report:

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“Prior to the review it was clear that the aspect of S.I. No 9 of 2014 of greatest concern to the public has been its impact on single housing units and on extensions to existing homes…”

“There is a clear demand for active, independent on-site inspections by local authority personnel. Respondents generally favoured a more significant role for building control in this regard.”

  • On Statutory Certificates of Completion

“It is clear from the submissions that concerns persist about the burden placed by the wording of the statutory certificates on the certifying professional. Several submissions suggest changes which are seen as rebalancing this burden. Any adjustment in this regard would need to be carefully weighed against its impact on building quality and consumer recourse.”

  • On the issue of Liability and Responsibility

“…it is clear from a number of submissions that concerns in relation to liability continue to exist. These concerns may be preventing a number of registered construction professionals from taking on the roles of design certifier and assigned certifier who would otherwise do so or, in the case of those who do take on the role, to impose additional fees and/or inspection requirements commensurate with the burden of liability they perceive themselves to be facing. This issue needs to be addressed in order to ensure the optimum benefit for the consumer.”

  • On Professional Indemnity Insurance

“Several submissions included recommendations in relation to professional indemnity insurance and other corporate insurances. In general, however insurance matters are outside the scope of regulatory powers vested in the Minister under the Building Control Act 1990. In the first instance the professional bodies should raise their concerns and proposals with insurance providers. The Department would be happy to assist with such matters where reasonable and appropriate.”

  • On Latent Defects Insurance

“In principle the existence and use of LDI is in the common good. However the prudence or otherwise of mandating their use by legislative means remains to be determined. Supporting LDI, in the housing market in particular, may also be achieved by other means.”

  • On Exemption for Local Authority buildings

“Some submissions from Local Authority respondents have suggested that the exemption from Building Control procedures that is currently open to local authorities, when building in their own functional area, be discontinued. Given that local authority owned buildings, in particular social housing stock, may be sold to private buyers at a future date there are advantages in compliance with statutory certification requirements. An information note on the matter was issued by the Department on 17 February 2015. The matter is currently been considered by the Chief Executives of the Local Authorities.”

  • On supporting bulding control functions:

“It is suggested that the role and function be defined and that steps be taken to ensure that inspection and enforcement work is overseen by registered construction professionals, and that arrangements are in place for training and continuous professional development of Building Control Authority staff. Submissions from industry supported the need for the function to develop along professional lines if inspection and enforcement capability is to increase as envisaged.”

  • On Regularisation of projects having commenced illegally

“There are legal complexities in this area. Most importantly, to commence works without notifying the local authority is itself an illegal act and one on which the clock cannot be turned back. The State needs to be very careful about being seen to retrospectively legitimise or approve such projects particularly where the buildings in question may be owned or occupied by other parties who will suffer the consequences should any latent defects emerge at a later date. The existing administrative arrangements can be used to accommodate the finish out of such projects provided due diligence checks are carried out on the earlier illegally commenced works.”

  • On whether S.I. 9 be eased in the case of a new single dwelling and an extension to an existing dwelling

“The broad thrust of submissions were overwhelmingly against any diminution of the existing requirement for statutory certification for one-off housing. Key reasons cited were that consumers in this segment of the market were vulnerable and needed the protection of regulation; that consumers themselves are likely to be unduly influenced by short-term financial considerations; and the undesirability of fostering a two-tier regulatory system in the residential market. Particular concerns were raised about the unintended consequences of a decision not to subject a building project to building control procedures in the form of unforeseen liabilities and limitations on funding arrangements and mortgage facilities for current and future owners.

The submissions received show support amongst prospective homeowners, and a small number of individual construction professionals, for the proposal that statutory certification be made advisory rather than mandatory as suggested. Cost was the over-riding consideration in such cases.”

  • On Cost

“…the consultation indicates that the planning, design and assigned certifier service can be achieved at a combined charge of 8,000. A combined quote from a competent registered professional will probably give the best value for money for consumers. Using different persons for planning, design and assigned certifier roles leads to duplication of work and costs…

There is evidence that assigned certifiers who may lack competence in a particular aspect of the regulations (e.g. structure or Part L compliance) are outsourcing these aspects of design/inspection to other professionals at an additional cost to the client. From a consumers perspective a single service provider will give better value for money and this should be attainable in a single dwelling scenario. Structural designs signed by a chartered engineer are not a regulatory requirement for a typical one-off dwelling for instance. There is a role for CPD training responses here which would allow registered professionals to brush up on and gain confidence in aspects of the regulations with which they are not familiar and the professional bodies can play a role in this regard. These are examples of areas where the consumer is unfairly being presented with additional costs because the person who has undertaken the assigned certifier role may lack competence in a particular aspect of the application of the building regulations.

One respondent also suggests that construction professionals may be giving the impression that project management is a regulatory requirement and quoting prices in the range of €10,000-€15,000 or 6% to 8% of the value of a house. It is important to clarify that the Assigned Certifier role is a quality assurance role and the regulations do not mandate full professional service / project management which remains discretionary. Consumers may be at a disadvantage in seeking and understanding quotations in this regard.”

  • On whether broadening the pool of professionals who may sign certificates of compliance, in particular Architectural Technologists and a Minister’s List

“…Among the respondents who supported measures to broaden the pool of certifiers, the statutory registration of Architectural Technologists was by far the measure attracting most support…

The need for an assessment of competence cannot be avoided as a prerequisite for any person being given what is effectively a licence to inspect and certify works for statutory purposes.

In their submission, the Irish Building Control Institute (IBCI) point to the fact that 5,000 construction professionals have now registered on the Building Control Management System (BCMS). This indicates that the pool of registered professionals available to consumers is considerable having regard to current and anticipated activity levels within the construction industry.

A number of specific categories of persons were mentioned by respondents as being suitable for the role of certifier…Construction Technicians & Architect-related diploma students from IT institutes, Unchartered Engineering Technicians and Surveyors, Chartered Institute of Builders (CIOB), Independent Irish Architects, Interior Designers, Project Managers.”

  • On competence of registered professionals:

“A number of submissions pointed out that not all registered Engineers, Architects and Surveyors are familiar with the Building Regulations and those that are not so familiar should be prevented from acting as certifiers. This is a valid observation and it should be noted that the provisions of S.I. No. 9 of 2014 specify competence in addition to being a registered professional….

It is also worth emphasising that the regulations do not place any limitation – other than competence – on who may undertake design or inspection work. Ancillary certification enables participation by competent persons at all levels of qualification. It is only those persons who wish to act as assigned certifiers or design certifiers who are required to be competent, registered professionals.”

  • On whether no change in regulatory requirements for new single dwellings and extensions to existing dwellings

“In general the Sample Preliminary Inspection Plan was seen as a positive development although a number of reservations were expressed. Some respondents disputed the Department’s costing which accompanied the Sample Inspection Plan and indicated that it would only be possible to perform the design and assigned certifier roles for a single dwelling for €8,000 or upwards. However a number of other respondents indicated that they have already undertaken the role at a cost that is in keeping with the Department’s costing…

On the question of costs, several submissions favour a cap on fees charged by professionals for the assigned certifier role. This is not possible however. Any attempt to restrict or control pricing for professional services would be an anti-competitive practice and would be contrary to competition law…

A number of registered professionals expressed reservations about the adoption of the Sample Preliminary Inspection Plan on the grounds that it may reduce the inspectionprocess to a tick box exercise…”

  • On extensions and self-builds:

“Greater clarity was called for in relation to the application of the threshold of 40 square metres above which statutory certification applies to extensions. Confusion exists in relation to the status of previous extensions and the reason or relevance for taking the size of previous extensions into account in the first place was questioned.

Other Issues raised in submissions relating to Self-build in particular Submissions made by self-builders and by representatives of self-builders indicate that the regulations are perceived as being intended to restrict or prevent self-building. Two aspects of the regulations are seen as giving rise to this perception. Firstly the general requirement that an owner must be satisfied that a competent person is nominated to take on the role of builder. Secondly, the statutory certificates requiring a signature by a Principal or a Director of a building company only.

A clarification in the interpretation section of the regulations to the effect that nothing in the Building Control Regulations should be read as preventing an owner from nominating themselves as the builder for building control purposes (provided they are satisfied that they are competent to perform any building tasks they intend to undertake themselves and will appoint only competent persons to undertake all other building tasks) would resolve the issue…Clarification that the requirement that the signatory be a Principal or Director applies only in the case of a company would also be helpful.

Another issue of importance in relation to single dwellings is the question of occupation prior to completion. Single dwellings in rural areas are often undertaken in stages as money becomes available and are often occupied when partially complete. A number of submissions called for a partial completion certificate or certificate of habitation that would allow self-builds to be used before being fully finished once they are in compliance with critical safety and access requirements.”

Other posts of interest:

A copy of the DECLG Report on the Consultation Process is available here.

Minister Coffey announces changes to BC(A)R SI.9

Regulations add up to €60k to house cost | Karl Deeter

CIF advises against any easing of regulations for Self-builders | Irish Building Magazine

BC(A)R SI.9 Submission Series No 1: ‘Self-Build issues’ | IAOSB

BC(A)R SI.9 Submission Series No 2: ‘12 Point Plan to fix S.I.9’ | UCD

BC(A)R SI.9 Submission Series No 3: The Legal Environment and Consumer Protection | Deirdre Ní Fhloinn

BC(A)R SI.9 Submission Series No 4: Proposal for a Better System

BC(A)R SI.9 Submission Series No 5 | Architectural Technologists: CIAT

BC(A)R SI.9 Submission Series No 6 | Practically Trained Architects: AAOI & GIAI

BC(A)R SI.9 Submission Series No 7 | Architect’s issues: Eoin O Cofaigh FRIAI

BC(A)R SI.9 Submission Series No 8: Stakeholders ACEI, SCSI & RIAI

ALERT: Ministers Kelly & Coffey Commence Review of Building Control Regulations | BRegsForum

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