One ‘L’ of a battle looming over DECLG Building Regulations | Michael Tweed

Michael Tweed

Michael Tweed B.Arch MRIAI

There was a huge reaction to the BRegs Blog re-post of a Building Regulation: TGD Part ‘L’ article by architect blogger, Mike Morris, on Monday last (Link Here:). This was unanimously supportive with a few commentators seeking to clarify further some of the points made. There remains a great deal of uncertainty in the construction industry with regard to trying to comply with Building Regulation Part ‘L’: Conservation of Fuel and Energy 2011 and the associated legal liabilities for Design and Assigned Certifiers when the official technical guidance is inadequate.

It is unfortunate that the relevant construction industry stakeholders (ACEI, CIF, EI, RIAI and SCSI) appear to be doing nothing to address these shortcomings by the Department of the Environment, Community and Local Government.

It is proposed to publish a few of the comments received commencing below with a response from architect, Michael Tweed:

Reading Monday’s post ‘Part ’L’ – Made Easy’ it could be easy to confuse Building Regulations with Technical Guidance. This is not surprising since it appears to me that the majority of people, including a frightening number of those engaged in the construction industry, don’t seem to recognise the difference. It’s frightening because one of the aims of regulating building is to ensure safe and healthy buildings. The Building Regulations are drafted as statements of intent – and are contained in the Second Schedule to the Building Regulations. By and large they are non-technical and the terms  “reasonably practicable” and “practicable” recur. The question as to what is deemed “reasonably practicable” and “practical” is left open to interpretation. This is the reason why it is impossible to state something is in “full compliance” and why you can only ever give an opinion that something is in “substantial compliance”, but I don’t see this articulated much, probably for the reasons I state at the start of my comments.

In order to give guidance on how to interpret the terms such as “reasonably practicable” a set of Technical Guidance documents have been published. These provide GUIDANCE in technical terms so that “where works are carried out in accordance with the guidance…this will, prima facie, indicate compliance with…the Second Schedule to the Building Regulations”. Note that prima facie does not mean that it absolutely indicates compliance, rather that it “denotes evidence that, unless rebutted, would be sufficient to prove a particular proposition of fact”. It is actually quite easy for example to rebut the guidance in Part F Technical Guidance documents for ventilation of dwellings to demonstrate that they in no way provide compliance with Part F of the Second Schedule to the Building Regulations, particularly for apartments. But note, this deficiency in the Technical Guidance, does not change the Regulation Part F which simply says “F1 Adequate means of ventilation shall be provided for people in buildings. This shall be achieved by a) limiting the moisture content of the air within the building so that it does not contribute to condensation and mould growth, and b) limiting the concentration of harmful pollutants in the air within the building” and “F2 Adequate provision shall be made to prevent excessive condensation in a roof or in a roof void above an insulated ceiling”. I can provide evidence of numerous dwellings which “comply” with the Technical Guidance but fail completely, particularly in regard to Building Regulation F1 due to excessive condensation and mould growth.

What really makes Part L difficult to understand and comply with is that BOTH the Regulation and the Technical Guidance have now become so complex through re-drafting as to be almost impossible to satisfy.

I agree 100% with Mike Morris in the fact that the Technical Guidance document Part L for Dwellings doesn’t make sense. He is absolutely correct that by making compliance a comparison between an actual dwelling and a “reference dwelling” it is easier to comply by starting with the most inefficient building type – one which has the greatest exposed surface area in proportion to the volume of the building. This has the bizarre effect of making it more expensive to make an apartment comply following the Technical Guidance documents than a many winged bungalow, where apartments are inherently the most energy efficient dwellings you can build. Of course, it is possible, if you had the confidence to do it, to accept the challenge posed at the start of each Technical Guidance document where it states that “the adoption of an approach other than outlined in the guidance is not precluded provided that the relevant requirements of the Regulations are complied with.” This actual allows for alternative designs in the case of apartments and if architects and builders were really savvy they would adopt this approach to “value engineer” apartments. I contend that because Mike Morris may have been confused about the legal status of the Technical Guidance Documents he fails to notice this. Unfortunately and depressingly I guess so do very many others. In addition the Technical Guidance documents have become the means of providing the default fall-back defence in the event of the designers or builders being challenged on compliance with the Building Regulations.

In truth there is nothing overly wrong with the Second Schedule to the Building Regulations as a set of general principles for good building practice. What does require some serious revision and redrafting are the Technical Guidance Documents where in some cases they are simply giving wrong advice and in other cases have become so complex they are almost impossible to understand.

However, the biggest defect in Building Control in Ireland remains the fact that Building Regulations approval and Building Control inspections are not put on a statutory Local Authority footing.

Other posts of interest:

6 thoughts on “One ‘L’ of a battle looming over DECLG Building Regulations | Michael Tweed

  1. Mike Morris

    Thanks for this, I would agree with the thrust of the argument made. And also for drawing attention to Part F, another example of a deficient TGD.

    In the footnotes of the original post on my blog, I do actually note that there is a difference between the Regulations themselves and the TGDs (see footnote 1 on the post) although I don’t specify what the difference is. The original post was an attempt to make the issue digestible for everybody, including non-architects, and so certain issues such as the Regs/TGD distinction were simplified (to prevent a 4,000 word post turning into an 8,000 word one). It’s useful to have a full clarification here.

    What I will say is that most architects treat the TGDs as law, even though they are aware of their advisory status. I don’t think this is due to a lack of willingness to value engineer, but due to a basic risk-aversion. Architecture is a business where being sued is a real possibility at all times. Being the subject of legal action due to non-compliance with the regulations is a nightmare scenario. I would applaud any architect who attempted to an argue an alternative means of compliance, but it’s a risky thing to do, and as a result I doubt we can expect to see a situation where this practice becomes widespread.

    Reply
    1. Michael Tweed

      I agree fully that sole use of the TGD’s to design and build in compliance with the Building Regulations is due primarily to risk aversion. But it’s my belief that a mindset which treats the TGD’s as “the law” hinders debate as to whether the technical guidance given in these documents is sometimes wrong or questionable or whether it is the best way of complying.
      As I said in my comments the Regulations are by and large fine and compliance will produce good buildings. Where architects should be more engaged in Ireland is a) in changing the Building Control Act to ensure oversight of the Building Regulations is carried by, or independently on behalf of, the statutory local authorities and b) in arguing for revisions and corrections to the Technical Guidance Documents when they are wrong, unusable or unworkable. If we had Building Control departments giving Building Regulation approval there would be the opportunity to engage with this debate with them without the risk attached.

      Reply
  2. Michael O'Neill

    The technical guidance offered in the TGD is a deemed-to-satisfy method of achieving compliance.

    I believe this advice is not confused with the building regulations per se – it is simply substituted for the regulation in the minds eye of the average architect because they can point to it as a somewhat definite means whereby a certain level of compliance can be achieved.

    I say “a certain level” because as the writer has appropriately pointed out the terms of reference in the building regulations can be vague and aspirational, while the regulations expose a certain tunnel vision on the part of the various writers of said advice.

    This is why I called for an integrated set of details showing compliance back at Plan Expo 2009.

    What we got instead were the eternally moving goalposts of Part L and seeming total disregard for ensuring sort level of compliance with the other regulations.

    For example – take Part B (Fire) and the preference for external insulation to avoid cold bridges and interstitial condensation

    With several of the materials being used to achieve compliance with Part L being combustible are we just building more expensive Roman Candles as opposed to Roman Villas?

    Reply
    1. Noel Turley

      The TGDs are guidance documents, Part L compliance is determined by DEAP and the only requirement is for the provisional enrgy rating which is calculated by DEAP to be presented to the Building Control body at commencement notice stage of the project. This is too late in the design process, the industry needs a compliance tool that can be used by the designer during the intial design process. The design tool needs to be integrate with accredited details and their psi values,Part L Products, technical data with U value, y value calculators and with DEAP.

      You are right the key to Part L and B compliance is an integrated set of details that have had the psi values accredited and the details checked so that they comply with Part F by government and then made available for public use. I have noticed that insulation manufacturers are providing details that are accredited for use in DEAO but do they comply with Part F..

      Reply
    2. Michael Tweed

      Michael, we don’t know if the TGD’s are a deemed to satisfy method of achieving compliance with the Building Regulations because so far the courts have not adjudicated on them to this extent. Because they prima facie indicate compliance they are open to rebuttal arguments. To date no one has taken a court action as to whether a proven breach of the Regulations can be defended successfully by reliance on compliance with the TGD guidance however we expect this to be the case. I simply advocate precision of thought, logic and argument.

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  3. Michael O'Neill

    The issue is that you cannot cherry pick which Building Regulations to comply with – we are obliged to comply with them all. My comments above were meant to illustrate ONE issue where conflict was apparent. I can hear the rumble of external insulation companies arriving outside my door as we speak.

    But seriously, the Building Regulations are about the “health” of the building, when they should be utterly focused on human issues – the cost to procure, the cost to run, the health of occupants, the laziness and stupidity and tight-fistedness of humans when maintaining buildings. All of these are known factors and must be taken into account when designing houses.

    As far as practicable dwellings should be made of long lasting good quality materials that are relatively maintenance free and promote good air quality and few draughts. Otherwise houses will quickly fall out of compliance with whatever regulations they DO comply with, totally defeating the purpose of setting standards in the first place.

    Does this presage fleets of housing inspectors in mini-vans checking you have maintained your house? Well that is one possible situation.

    What about meters monitoring carbon generation as a function of house energy usage, with an upper limit per person before you start paying tax on it? Impossible?

    What about a Lifestyle Audit, targeting the worst consumers of energy across the country and naming them in a form of Stubbs Gazette as the people letting the country down in terms of cutting carbon production? Too far-fetched? Really?

    You read about these measures here first.

    Reply

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