09 November 2015
Several colleagues have recently asked me questions along the following lines. The questions tend to recur. Perhaps my answers will interest others.
1. Building control regulations, in summary please?
Building control regulations set down the procedures to be followed in building works. These include obtaining fire safety and disability access certificates for most non-domestic work; serving a commencement notice for work requiring either planning permission, a fire safety certificate, and certain material alterations to shops and offices; lodgement of notices regarding the appointment of the builder and statutory certifier; lodgement of drawings, specifications and inspection plans before work starts; and signing and serving certificates of compliance of the design and construction with the building regulations.
2. Control regulations did not affect local authority work before now. So what has changed?
Since 1 September last, when Statutory Instrument 365 of 2015 came into force, all work done by a local authority in its own functional area is now subject to the building control regulations. This includes new builds, material alterations and changes of use.
3. But building regulations always applied to local authority work?
Correct. Building regulations – the “what and the how to design and to build” – always applied. However, in 1991, when bringing in building regulations, the government felt it made no sense for local authorities to be applying to themselves for fire safety certificates or to be serving commencement notices on themselves. So they exempted local authority work from the building control regulations. This has now changed.
4. The change was made by S.I. 365 of 2015?
Article 5 of S.I.365 of 2015 deleted the exemption for “work by a building control authority in its own functional area” from the building control regulations which up to then was found in article 6(a) of the 1997 building control regulations. (The exemption had been there since 1991.) By removing the exemption, this work is now subject to the control regulations.
5. Why did the Minister make this change?
In the Department of the Environment’s press release of 31 July announcing the regulations, the Minister of State at the Department is quoted as saying “I firmly believe that local authorities should be setting the standard when it comes to the construction of homes; and given the roll-out of the Social Housing Strategy, we must ensure that we have well-built homes for families across Ireland.”
6. What about Central Government work?
The new regulations make no change to the exemptions applying since 1991 in relation to Central Government. Those exemptions are moderately complex and might be summarized as follows:- buildings or works used by the Garda, the Defence Forces, a courthouse, a building used in connection with:- the Oireachtas; the Departments of the Taoiseach, Defence, Foreign Affairs and Justice, Equality and Law Reform; the Offices of the Tanaiste, Attorney General, Chief State Solicitor and Director of Public Prosecutions; or where works are for reasons of national security within the curtilage of any building occupied or controlled by a State authority, or the residence of a present or former holder of public office, or of any present or former public servant.
Other buildings and works for Central Government, including in connection with other Government Departments or public offices, continue to be subject to the building control regulations.
7. What do the changed regulations mean for me, a local authority staff member designing new or refurbishing older buildings?
The same procedural rules now apply to local authority work as to private sector work. To the extent that the procedures apply to the various building types (not all procedures apply to all projects), your work is subject to the requirement to obtain a fire safety certificate, obtain a disability access certificate, serve a commencement notice, lodge drawings and an inspection plan with the local authority, serve a certificate of compliance of design and certificate of compliance on completion, and the rest. All this paperwork is on a register and is available for public inspection. You need to learn these procedures and apply them from now on.
8. What building types in particular are affected?
All new housing (houses, whether “traditional” or “modular”; apartments), libraries, crèches, local authority offices; and many (not all) refurbishments (“Material alterations”) of housing, libraries and other buildings.
New apartment or mixed-use part-residential buildings, new offices and new places of assembly (libraries, crèches etc.) as well as material alterations to existing such building types, must have a fire safety certificate and a disability access certificate before starting construction. These building types are also subject to the full Certifier assignment and certificates of compliance procedures for design and completion (the so-called Design Certifier and Assigned Certifier certificates) which came into force on 1 March 2014 under S.I.9 of 2014.
9. What about single-family homes?
Single-family homes, traditional and modular alike, are not subject to the fire or access certificate procedures. They are subject to the Commencement Notice and lodgement of drawings and inspection plan procedures under S.I.9; and must comply with the Certifier assignment, and Assigned and Design Certifier certificate procedures.
In the case of a new single dwelling, on a single unit development, or an extension to a dwelling, S.I. 365 allows an “opt-out” from the Certifier procedures into an enhanced local authority inspection regime.
10. As a city or county manager, what new responsibilities have I?
You need to see to it that the building control regulation statutory duties applying to building owners are complied with for works done by your authority in your authority’s functional area. The extent of the new duties varies with the project type, but the new duties and associated workload are quite extensive. For a summary of the key areas, see the previous answer.
Depending on the project type, you as building owner have a duty to appoint competent persons to act as Design Certifier, Assigned Certifier and builder. This applies to all new housing, whether apartments or houses, whether traditional or modular type. People signing Design and Completion Certificates must be on a register of architects, engineers or building surveyors. Only competent contractors should be appointed to undertake work subject to the regulations.
The procedures around fire safety certificates and disability access certificates apply to most new buildings, excluding single-family houses (but not excluding apartments).
You need to ensure, on the one hand, that your building design and construction staff make competent applications for fire safety and disability access certificates; and on the other hand, that your building control and fire safety staff vet those applications in a competent and even-handed process.
You need to ensure that the drawings accompanying an application for a Disability Access Certificate are signed by you or on your behalf, in the place of the building owner.
You need to ensure a thorough vetting of the design, both pre-Commencment and on site, for compliance with the building regulations, as the Design Certificate exposes your design staff in an acute way.
You need to ensure that your building design and construction staff serve the Commencement Notices and Completion Certificates for their work to take account of the several weeks’ notice needed; and that your building control staff validate these documents without undue delay.
You need to extend the register of documents available for public inspection to cover the works done by your own staff.
11. How do I make a fire safety certificate application?
Procedures developed through 25 years’ experience involve a set of drawings (site plan, floor plans, sections and elevations) which are marked-up in a dedicated way to show periods of fire resistance, escape routes and travel distances, unprotected areas, ring mains and so on; and a fire safety report which works through the building regulations Part B requirements in a systematic way.
Most applications involving housing, libraries and other local authority building types should be straightforward and need not involve employing outside consultants.
12. How do I make a disability access certificate application?
Very similar type documents to those accompanying a fire safety certificate application, except of course that the mark-ups involve corridor widths, details of accessible sanitary facilities, lifts and ramps; and that the report deals with Part M requirements. The 2010 Technical Guidance Document to Part M of the building regulations is a complex document with many design features which would not appear on many sets of detail drawings. You will need to decide how to factor these into your report.
A “complete and certified set of drawings” must accompany the disability access certificate application. The nature of the certification is not specified. Hitherto, some building control authorities have required that the building owner sign the drawings, and confirm their intention to comply with Part M. This undertaking would presumably be signed by the Manager, as the person in a position to deliver such compliance; or by a person appointed by the Manager to undertake this task.
13. Are fees payable with these applications and notices?
Yes. The new regulations incorporate no procedure to exempt local authority work from payment of the fee (to the same local authority) which must accompany applications for fire safety or disability access certificates, or Commencement Notices. As this payment process is a circular one, a pragmatic solution can presumably be arrived at.
14. What is a Commencement Notice?
A notice which must be served on the local authority between 28 and 14 days before the construction work to which building regulations applies starts. The Commencement Notice is accompanied by drawings, specifications, the Design Certificate, an Inspection Plan, undertakings by the Assigned Certifier and Builder, and sundry other documents. The Notice is entered on the Register and is a matter of public record.
15. What and who is a “Design Certifier” and a “Design Certificate”?
The regulations require the building owner to appoint a person to certify the design. That person has no specific title under the regulations, but is often called a “Design Certifier”. The certifier must be a registered architect, building surveyor or engineer.
Under Article 9 of the regulations, the Design Certifier signs a “Form of Certificate of Compliance” (Design) in relation to almost all new buildings. The person signing the Design Certificate confirms that they have coordinated the design activities of the design team and specialist designers, and certifies that the proposed design (both their own design, and also that of any consultants or subcontractors) complies with the requirements of the building regulations. The Design Certificate is served on the local authority at the same time as the Commencement Notice.
16. … and an “Assigned Certifier”?
The regulations require the building owner to appoint an Assigned Certifier:- again, a registered architect, building surveyor or engineer. That person prepares an Inspection Plan to inspect the building work, and this Plan can incorporate inspection plans from consultants or subcontractors. Before construction starts, the Assigned Certifier signs an undertaking to inspect the work to check its compliance with the building regulations. When the building has been built, and before it can be opened, used or occupied, the Assigned Certifier certifies that they have done the inspections, and that the completed building complies with the requirements of the building regulations.
17. What about “substantial compliance with the building regulations”?
The building control regulations incorporate no such concept. The completed building must comply with the requirements of the building regulations.
18. What is a “Completion Certificate”?
Under Article 20F of the regulations, the Assigned Certifier signs a Certificate of Compliance upon Completion. In this, the Builder certifies that he has built the building per the drawings and specifications lodged with the Design Certificate, and, reliant on that, he certifies that the as-built works comply with the requirements of the building regulations.
The Assigned Certifier confirms that the Inspection Plan has been undertaken and certifies that the completed building complies with the requirements of the building regulations. There is provision for consultants and subcontractors to sign “Ancillary Certificates” of compliance in relation to their own work.
The local authority must validate this Completion Certificate before the building can be opened, occupied or used. The time allowed for this is five weeks, and there are procedures for serving advance notices so as to facilitate speedy validation.
19. How much time will I need to prepare these applications and Certificates?
The answer depends on the size and especially on the complexity of the project. Before S.I.365 came into effect, drawings were already needed for construction purposes. The extra time needed to prepare a dedicated set of fire safety or disability access certificate drawings and write customized reports would be up to a week each.
The time to administer the Inspection and Certification procedures in the S.I.9 2014 regulations is rather longer. The RIAI estimate about 100 hours for the Design Certifier and Assigned Certifier tasks for a one-off dwelling. This might reduce pro rata on a site involving many houses or apartments.
The workload and responsibility involved in identifying, collecting, and checking Ancillary Certificates is considerable. It is unlikely that professionals in local authority employment would have undertaken such tasks up to now.
20. Do these regulations apply to “modular” or prefabricated housing?
The building regulations and the building control regulations do not distinguish between dwellings assembled on a site in a “traditional” manner, and dwellings assembled off-site and brought to the site pre-finished and ready for occupation. Neither is there any distinction under building regulations between a “temporary” and a “permanent” dwelling. All are subject to the same procedures.
The building control regulations make no provision for exempting “Emergency Works” from the regulations.
The time periods around the service of Commencement Notices and (unless the “Opt-Out provisions” can be availed of for a single dwelling on a single-unit development) validation of Completion Certificates are likely to have the same effect on delivery timescales for modular housing as they have on fit-out works in Shopping Centres and other Places of Assembly. The control regulations require service of a Commencement Notice 14-28 days before starting on site and of a Completion Certificate 3-5 weeks before completion.
For projects planned to take a week or less on site, the best available solution is to serve the Commencement Notice and Completion Certificate on the same day.
21. What’s the theory behind the Certifier roles?
The regulations were intended to protect home buyers from defective building, by identifying a “clear chain of responsibility”.
One person, not given a title in the regulations but often called the Design Certifier, certifies that the entire design (including any design done after construction starts) complies with the building regulations; and one person, the Assigned Certifier, certifies that the construction work has been inspected and that it complies with the regulations.
The Minister’s and his Department’s theory was as follows:- “(a) Make the Design Certifier certify total compliance of the design with the building regulations. (b) Make the Assigned Certifier certify total compliance of the finished building. (c) Put these certificates on public record. (d) This will make it easy to sue the certifiers if they get it wrong. (e) This will force the certifiers to design and inspect everything and spot any mistakes. (f) The certifiers then get the consultants and builder to fix all design and construction mistakes. (g) In this way the home buyer gets a better package.”
22. How and to whom might a Certifier be legally liable for defective work?
In theory, the main person whom the regulations benefit is the home buyer. In reality, the responsibility is wider. Firstly, because the regulations apply to all building types and not only dwellings. Secondly, because the registers of Design and Completion Certificates are open to public inspection. Any person suffering damage or loss as a result of a building defect can issue legal proceedings against the so-called Design Certifier and the Assigned Certifier, whose names are on the public record. This would obviously include tenants or purchasers of local authority dwellings, or users of public buildings.
23. What might be considered as defective work?
Examples of defective work which would fall under a Certificate of Completion include:- an uneven staircase which resulted in somebody falling; guarding on a balcony which was too low, resulting in an accident; defective air-tightness membranes, resulting in excessive air infiltration and high heating bills; poorly sealed radon barriers, resulting in excessive gas and potential damage to health; undersized permanent ventilators, resulting in condensation, poor indoor air quality and damage to health; and so on.
If the construction work is identified as defective, the next step for a potential litigant or other defendant will be to establish whether the work was designed properly or at all, and to what extent the defective design was certified as complying with the building regulations.
24. What does the Minister say about the liability of the “Assigned Certifier”?
Announcing the new control regulations in 2013, the then Minister for the Environment, Mr. Phil Hogan said:-
“The new approach establishes a clear chain of responsibility for building works prior to commencement through to completion.
Assigned Certifiers, who can be registered architects, engineers or building surveyors, will inspect building works at key stages during construction … The mandatory certificates will be clear, unambiguous statements on statutory forms stating that each of the key parties to a project certifies that the works comply with the building regulations and that they accept legal responsibility for their work.
The consumer will ultimately benefit, as at every stage of the project, they in effect will have a rolling set of guarantees from those who can be held responsible for any issues that might arise.”
25. What does the Department say about the liability of the Design and Assigned Certifiers?
Information Document no.3 published by the Department of the Environment, Community and Local Government in connection with their April 2015 review of S.I.9 of 2014, puts it thus:-
Building Control Regulations provide for statutory certificates of compliance which balance the liability of the various parties in a number of ways:
i. The designer, the builder and assigned certifier each separately sign in respect of their role;
ii. Certificates are given in the context of an agreed inspection plan having been prepared and executed in accordance with a Code of Practice for Inspecting and Certifying Building and Works, which clarifies the roles and responsibilities of each party, and it being lodged with accompanying compliance documentation and ancillary certificate in a process which is validated by the building control authority who maintain a public register of activity. The discipline and order that this process imposes serves to improve quality and thereby reduce liability.
iii. Those giving a statutory certificate may rely on a statutory certificate given by other parties and on ancillary certificates given by others, in the interest of ensuring a transparent chain of accountability thereby enabling a clear identification of where liability for a particular eventuality properly rests;
iv. The certs are framed around the signatory having exercised reasonable skill, care and diligence which allows an appropriate defence against unreasonable claims.
26. What do the leading construction lawyers say about the liability of the Certifiers?
In a paper of 15 July 2015, Mr. Mark Sanfey SC, Chairman of the Construction Bar Association of Ireland, considers the DoECLG paper and goes on to say:-
It is clear from the statutory framework of certification by specific professionals in the construction process, and the fact that those certificates may be accessed by the public, that the certificates are intended to be documents which will be procured and relied upon by any subsequent title holder. In this way, professionals may expect that their liability on foot of the certificates will extend far beyond any contractual relationship that they may have in relation to the works, with all the implications for their professional indemnity insurance that that may have.”
27. Are there any particular problems about the liability of the Design Certifier?
Mr. Sanfey considers that the liability of the person certifying the design is potentially heavier than that of the Assigned Certifier, because the Design Certifier has nobody else to rely on. He quotes Mr. John Trainor SC as saying, in a paper delivered to the Construction Bar Association:- “the requirement to submit plans would appear to have the effect of imposing on the owner and the designer an obligation to ensure that the plans are sufficiently detailed from the outset to ensure that all the relevant requirements of the building regulations have been taken into account by the designer in the preparation of the design for the building.” and goes on to say himself that the Design Certificate is “a warranty by the certifier of the “reasonable skill, care and diligence” of the design team and specialist designers…. there is a significant risk that the [Design] certificate would be interpreted as the designer assuming responsibility for the reasonable skill, care and diligence exercised by his design team.”
28. Have the Incorporated Law Society of Ireland given any advice to their members?
They have. The Law Society Conveyancing Committee have advised solicitors that they need look no further than the Certificate of Completion when conveying property. A solicitor acting for a purchaser or tenant need not seek copies of the Ancillary Certificates.
From this, it would appear that lawyers issuing proceedings in respect of defects would sue only the Assigned Certifier, and not the Ancillary Certifiers, as well as the Design Certifier if it appeared that the design may be defective. It would be up to the Assigned Certifier to find and join the Ancillary Certifiers in the case.
Presumably the Design Certifier would also seek to join in the other designers in the event of allegations of defective design. However, given Mr. Sanfey’s views, this may not protect the Design Certifier from any defective design done by others, as the Design Certifier has certified it.
29. What if the Design Certifier and the Assigned Certifier are not the same person?
If proceedings are issued against an Assigned Certifier alleging defective construction, an early response by the Assigned Certifier will be to join the Design Certifier into the proceedings as a co-defendant. The Assigned Certifier will say that s/he relied on the design, that the design was defective, and that the Certifier certified the design as compliant. The incentive for the Assigned Certifier to do this is that success in offloading the liability back onto the Design Certifier may allow the Assigned Certifier to avoid liability.
A complicating factor for the Design Certifier in seeking to defend the proceedings will be the implicit provision in the regulations, that “design” continues throughout the construction period and that the Design Certifier continues to be responsible in this regard.
30. What about the protection afforded by section 21 of the Building Control Act?
The Department of the Environment consider that s.21 g of the Building Control Act (which says “A person shall not be entitled to bring any civil proceedings pursuant to this Act by reason only of the contravention of any provision of this Act, or of any order or regulation made thereunder”) gives a Certifier considerable legal protection.
In a direct comment on this view of the DoE, Mr. Sanfey points out that prosecuting lawyers never frame proceedings on the basis of breach of building regulations alone, but always refer also to negligence, breach of statutory duty or other grounds for action, and considers the section 21 protection illusory.
31. Will my employer’s insurance cover me personally if I act as a Design or Assigned Certifier?
A professional either signing the Design Certificate or acting as “Assigned Certifier” is in either situation undertaking a statutory role. To do this results in the certifier undertaking duties which may go further than was envisaged in contracts of employment written before the new regulations were introduced. A prudent professional, considering taking on a Design or Assigned Certifier role, may wish to establish that their Employer will indemnify them in respect of any liability or loss you might face arising out of taking on such duties. In the private sector, such cover, if it is to be had, is generally under a professional indemnity insurance policy. However, while such policies may indemnify you, this may not stop an aggrieved person issuing proceedings against you in the first place.
32. What is the cost of these new regulations?
The regulations impose direct costs for fire safety, disability access certificate applications and for service of Commencement Notices. As these costs are in a circular process, they might be discounted. The indirect costs include:-
- Management time to make the necessary statutory appointments;
- Time for design staff to prepare applications for fire safety and disability access certificates;
- Time for control staff to scrutinise the applications;
- Time for staff to fulfill duties of Design Certifier;
- Time for staff to fulfill duties of Assigned Certifier;
- Time for design staff to draft and coordinate inspection plans;
- Time for design staff to assemble ancillary certificates of compliance and sign Completion Certificates;
- Time for control staff to validate these.
- The RIAI time estimates included the time to prepare the applications, inspection plans, and certificates of compliance, but not the time for control staff to vet the same material.
- Time to be spent by the contractor in coordinating the same material will be factored into Preliminaries costs under the building contract and is unlikely to be identifiable directly.
- A significant indirect cost which has emerged is the growth in defensive design and specification, in an attempt to protect the Assigned Certifier against legal proceedings.
A paper by Mr. Mel Reynolds to the Dublin Economics Workshop some weeks ago put the total cost at about €30,000 per dwelling. This figure has been disputed by specialist certifiers who put it at €15,000 per dwelling. (The direct cost of the simpler system in force in Northern Ireland is about €250 per dwelling.)
33. Should the standard form of GCCC building contract be modified to take account of the regulations?
Yes. A lot of work has been done in this regard.
34. Can I get the contractor to undertake the Design Certifier and Assigned Certifier roles?
The Department did not draft the regulations with this in mind. However, there are many advantages to the building owner in getting the main contractor to take these roles on. The contractor is undoubtedly the person best placed to see that the subcontractors do their work properly, and has full-time inspection staff on site. Furthermore, any difficulty around validation of Completion Certificates is less likely to result in a claim by the contractor against the local authority.
At the same time, in the event that the contractor liquidates his company, latent defects insurance would be essential to protect tenants or purchasers.
A number of architects have developed specialist documents to appoint the main contractor as Design Certifier and as Assigned Certifier and you could seek their advice.
35. How should I modify the clauses in the tender documents to take account of the regulations?
The RIAI issued draft documentation in this regard in Spring 2014. A working group including the writer and others reviewed the draft material in detail with specialist construction lawyers and the RIAI Director of Practice, in June 2014. The RIAI has not indicated whether and if so, when, the draft material will be rewritten and improved versions published.
Eoin O Cofaigh, 4 November 2015
About the author: Eoin O’ Cofaigh is a Registered architect and co-owner of McHugh O’Cofaigh Architects with 33 years experience in private practice working with clients such as Central Government Departments, Local Authorities and State Agencies on a broad range of healthcare, educational and office projects, in addition to private commercial and residential clients. Appointed by the Government to Building Regulations Advisory Board and to the EU Advisory Committee on Education and Training in Architecture he is a member of the Admissions Board to the Architectural Profession under the Building Control Act and expert witness in legal proceedings arising out of non-compliance with Building Regulations and defective design. Formerly a President of both the RIAI and the Architects’ Council of Europe and an honorary member of the German, American and Russian Institutes of Architects he is the author of several publications on Building Regulations and Building Control including ‘Europe and Architecture Tomorrow’ the most widely published architectural book of the 20th century.
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