Practical Post 28: Can I opt-out of SI.9 once started?

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22 March 2016

In the spirit of open discussion and debate, we will be posting a number of situations and problems presented by readers, with suggested answers from an informal blog panel of experts. Answers to some of these issues are not definitive, and due to vague wording of the building control regulation may be subject to more than one valid interpretation. We hope that this dialogue, along with readers informed observations, may evolve thinking on some of the practical problems and unintended consequences. As with all questions regarding the building control regulations, the BReg Blog recommends contacting your local Building Control Officer.

This series of practical scenario question and answer posts is complimentary to an earlier series of practical posts- see below.

The following email was received last week and refers to SI.365 ‘Opt -Out” introduced in September 2015. This “opt out” procedure was introduced in an effort to reduce the extraordinary BCAR SI.9 costs for once-off housing SI.9 introduced in March 2014. We put this question to our technical team to see what they thought of this situation. If you have similar problems or issue please don’t hesitate in contacting us.


Reader Question:

I was wondering if I could clarify advice I received relating to building regulations and the option of opting out of using an assigned certifier (after commencing)?

We commenced a self build having submitted a commencement notice on 2nd Nov 2015.  At the time our architect advised us that we had to go down the route of appointing an assigned certifier and when we enquired about the relaxing of regulations, we were told it was a mandatory obligation.  In our ignorance we took his word on this and did not complete the new opt out form at commencement.

We have since been made aware that the option of opting out was available and because we were left in ignorance of this, we have now been burdened with a serious financial increase in overall build which we simply can’t afford.

We’ve been told by X county council that we cannot opt out at this stage, which seems totally unjust given that the information that we received at the unset was incorrect.  Plus it seems somewhat nonsensical that you can opt out at commencement but not at a later stage.  As a consequence I now face increased inspections / stress and possible fines for not complying to regulations that have been relaxed.

I don’t know if this is something you can assist with, but I’m at my wits end to know whom to go to.

Many thanks,

J.


Comment from BRegs Blog technical team:

Well, if the account is an accurate one of what happened (and there are two sides to many stories), it looks like the architect listened to the RIAI’s (and other key stakeholders’) advice that the opt-out was a mistake and either didn’t advise or advised against adoption SI.365 “opt-out” procedures.

I would say that the advice that one cannot opt-out retrospectively is correct. This is not nonsensical at all:- the Building Control Authority need to be advised of the opt-out in advance of works starting, so that they can themselves decide to inspect, e.g., opened foundations, blockwork and so on. If you could opt-out retrospectively, there would be a phase of work which had been subject to no inspection at all by anybody.

One possibility might be to serve a Certificate of Completion now for the work to (say) roof level; then to serve a new Commencement Notice, with Notice of opt-out, for the rest of the work. However, the BCA should be asked will they accept this, because the original Commencement Notice described the full works, not just something up to roof level.

If the BCA go along with this, it would lessen the AC inspection workload and presumably cost, from this point on.

Presumably if this is a self-build project, the building owner can collect all the drawings, specifications, test results, certificates and so on. This would all need to be sorted in advance of instructing the Assigned Certifier to issue the Certificate of Completion, to avoid a dispute with the Assigned Certifier, a dispute which could get quite messy legally.

For other practical posts please see series below:

Practical post 26: Design changes on site?

Practical post 25: Septic Tanks | Waste Water Treatment 

Practical Post 24: New Part K & J of Building Regulations

Practical post 23: Design Build contracts- need a barge pole?

Practical post 22: Change of Owner

Practical post 21: Variations

For Practical Post Series 1-20 

NOTE: This series of posts is not meant to undermine or be in opposition to any professional advice from registered representative bodies: rather it is to offer additional technical aids to those that find themselves in the position of having to deal with SI.9 in it’s current form at present. As with all information posted on the Blog we urge all practitioners to check with their respective professional bodies before assuming any roles or duties under Building Control (Amendment) regulation (SI.9 of 2014). We hope to post a number of these practical posts and list in one area, so home owners, SME’s and professionals can drop in and click on a particular topic to get summary information that may be useful to them while working under the new regulations. 

1 thought on “Practical Post 28: Can I opt-out of SI.9 once started?

  1. Andrew Alexander MRIAI

    While SI.365 is often viewed an essentially opting out piece of legislation it does contain a number of quite onerous professional and administrative obligations which did not exist prior to the SI.09 era.

    One is an obligation to formally lodge documents which demonstrate compliance with the building control authority. In this respect a competent member of the architectural
    profession should not for example be re-printing the set of drawings that may have been submitted for planning.

    Planning drawings typically would not demonstrate compliance with all parts of the Building Regulations. Any self respecting set of documents passing themselves off as demonstrating compliance should for example include that structural calculation of the lintel or beam over the break through wall – by a structural engineer the client may or may not have yet decided was really necessary – or a hygrothermal analysis of the eaves and joints details or the DEAP calculation which the client was not convinced was really worth the 2000 euro specialist consultant’s fee.

    In short the documents lodged under SI.365 should be as thorough and defensive as those lodged under the rigours of SI.09. In fact one could argue that one has less chances to “get it right” under SI.365. I am not aware of any opportunity to upload details at a later stage to the BCMS under SI.365 nor will the built form of one’s design be verified as being in compliance by an Assigned Certifier further down the line.

    One other unknown aspect of SI.365 is the spectre of two tier certification and how conveyance companies are reacting to opt out houses coming on to the market. I believe the RIAI are spearheading a move to come up with a form of certification for such houses and amongst others are seeking the opinion of the Law Society, something the government should have thought to do when drawing up SI.09 and SI.365

    Reply

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