Is the Design Certifier a ‘Patsy’ for Builders?

02 February 2017

Since 2013 there has been considerable unease about the potential liabilities of Design Certifiers (see legal posts below). Many architects and engineers have taken this on without even a basic job description, leaving themselves (personally) wide open to claims from their clients and future owners and users of the buildings.  The following comment was submitted by Michael Tweed MRIAI to BRegs Blog in response to an earlier post Is Design Certification credible? Michael O’Neill MRIAI.

I commend Michael O’Neill and Brian Lahiff of Garland for their articles, the importance of which is that they shine a spotlight on some of the many fundamental flaws in the BC(A)R.

But I would go further than either article in regard to how key the Design Certificate is in the paper trail that is the BC(A)R.  Because neither article addresses the crucial point that prime responsibility is placed on the Design Certifier by dint of the “Certificate signed by Builder”.

This Certificate radically dilutes the Builder’s responsibility in respect of compliance with the Building Regulations.  By signing this Certificate the Builder certifies that… “having exercised reasonable skill, care and diligence… the building or works as completed has been constructed in accordance with the plans, calculations, specifications, ancillary certificates and particulars as certified under the Form of Certification of Compliance (Design)”.

The full extent of the dilution of his responsibilities is in the wording of the Item 4 in this Certificate – “Reliant on the foregoing (ie the Design Certificate) I certify that the works are in compliance with the requirements of the Second Schedule to the Building Regulations insofar as they apply to the building or works concerned”.

Nowhere in the Certificate is the Builder required to certify unequivocally, as the Design Certifier is required to do, that he has complied with the Building Regulations, but rather his certifying of compliance is reliant on the design as certified in the Certificate of Compliance (Design).  Let’s all stand with pointed fingers along the line, shall we?

The point Michael O’Neill makes that the design of any building is a complex web of interwoven designs is a truth that the BC(A)R doesn’t even recognise.  Almost regardless of the scale, scope or type of building, from a meagre domestic extension to a state of the art pharmaceutical plant, there are multiple designers involved, both designers of building elements and designers of assemblies of elements.

At the heart of this we should really be asking WHY was BC(A)R formulated in the way it has been?  Clearly it is not for the benefit of the consumer!  This has been pointed out and argued so cogently since the introduction of the BC(A)R that only an idiot would presume that it did.  Our politicians aren’t idiots – I think!  But they happily peddle the myth that the BC(A)R have provided comfort for consumers.  In reality the BC)A)R have been drafted as they have solely for the politicians’ own benefit.  BC(A)R’s real purpose, I contend, has been to create a paper trail to a select number of individuals, those foolhardy enough to stand as “Certifiers” and sign the relevant Certificates – where after it is legal tussle between their Professional Indemnifiers as to who be the final scapegoat, and the politicians gloat and claim that the BC(A)R are working because, look, someone is being punished!

At its heart the BC(A)R is a cynical exercise in deflection, just as the original Building Control Act was a cynical exercise in regulation through self-regulation, a proposal doomed to failure from the start! BC(A)R allows politicians to make unsubstantiated claims that they have “fixed” the building industry.  But the real trick is that it deflects attention away from what REALLY should have been done right from 1992 – to provide full Local Authority Building Control similar to that provided in the UK.

And why are they doing this?  Because to provide this has a cost in the recruitment of enough properly qualified and competent Building Control Officers countrywide to enforce such a system.  Instead our Building Control Departments are simply document storage facilities and Building Control Officers nothing but glorified filing clerks.

Ultimately it comes down to us, the citizens of Ireland.  If we vote for low tax and spend politicians this is what we get, along with the housing crisis, the crisis in the health service, the crisis in the provision of social services, teaching, public transport – and on and on and on…. We really do reap what we sow!

Other posts of interest:

Is Design Certification credible? Michael O’Neill MRIAI

Garland Consulting Engineers | Are third party Design Certifiers compliant?

Design Certifier | RIAI advise separate appointment

Professional Liability and BC(A)R SI.9 | Mark Sanfey SC

One-off houses and Certificates | Deirdre Ní Fhloinn

Information Paper, Advice for Architects | Orla Hegarty MRIAI

County Councils appoint separate Certifiers to projects

SI.9 and Part L | Specialist ancillary certifiers Part 2

Why the design certifier and architect need third party building fabric assessments

Are Design and Assigned Certifiers risking professional suicide with Pyrite and S.I.9?

Local Authority Staff: Questions on assuming the ‘Design Certifier’ role | Eoin O’Cofaigh

RIAI: OPW Interactive Tools for the Design Certifier

Ancillary Certificates: Why On Earth Would You Want To Sign That?

2 thoughts on “Is the Design Certifier a ‘Patsy’ for Builders?

  1. Michael O'Neill

    I’m delighted to see Michael Tweed’s statement that the builder evades his responsibility under BC(A)R. This means its taking root in the wider profession generally. Michael’s posts betray a good mind at work and if he concurs with this view there is hope that many others will too.

    However it is not just the limited undertaking offered by the builder, which dilutes the extent of the builder’s undertaking to almost nothing from that given under the original regulations – which was to build in accordance with the requirements of the building regulations – no “ifs” or “buts” about it!

    The certification of design itself takes responsibility for every on-site decision away from the builder (although he may still make them out of necessity) and suggests that all design is complete by tender stage. This is manifest nonsense. But it has been sold to the public by this and past governments.

    But the Holy Absolution for Builders is the assigned certifier’s certificate, which effectively means the assigned certifier takes the builders place and certifies the built work, despite having no control over the work and very little profit from it.

    How far this has come from the original intention under the Building Control Act 1990 et seq.

    Under the previous regulations Enforcement Action could be taken by the Building Control section against both Owner and Builder. There was no provision for taking action against designers or certifiers. Now both the Owner and the Builder get off Scott free and the whole thing is turned on its head!

    So it is not just the builder who is being absolved here. The Owner is too, which takes the Politicians’ beloved Self-Building Rural Electorate out of the frame and means their built defects get passed on to future generations without any accountability worth a damn.

    In a reasonable world, everyone who contributes to a building carries a certain weight of responsibility. A correctly worded Building Control Act and Building Regulations would apportion this responsibility fairly

    But in the Other World of The Law, where the Master is Liable for the Torts of his Servants (even those he doesn’t know about) this kind of legal shorthand, together with the imposition of Strict Liability, places all the responsibility on the easy targets the Law sets up to take the fall. The certifiers.

    This law has been set up to benefit corrupt politicians and their cronies in the building industry, rogue developers and criminal contractors.

    This law has not been set up to benefit the wider electorate – apart from self-builders, the scions of the landed gentry

    This law lays distracting trails of guilt to straw men while creating no useful means of redress for the purchasers of non-compliant properties.

    They say he who pays the piper calls the tune
    I say those who profit most from development should redress the wrongs done to the purchaser

    By “wrongs” I mean the consequences of inappropriate, non-compliant, non-affordable housing

    By “those who profit most” I mean the politicians, the landowners, the developers, the contractors and the planners and building control officers who are supposed to act for the local authority but who have consistently failed the electorate in their local authority area.

    These last pair are the most pernicious lot of public servants afflicting the electorate! The horror stories posted to this blog have shown the, even with clear knowledge of defects, they failed to act AND they did nothing to warn people whose lives were and ARE STILL AT RISK in badly built dwellings.

    In other words, its not just the builder who is shielded by BC(A)R but ALL of those people whose decisions lead to non-compliant building as well as those who fail to do their duty as citizens by either protecting people from the consequences of bad building or alerting them to the risks they face by living in badly built dwellings

    Reply
  2. Martin Keane

    There is a need to change building enforcement so it changes behaviours and attitudes of individuals whose work standards are poor/shoddy. A construction authority like the Road Safety Authority should be developed. The construction authority should issue licenses to all working in the construction industry.
    The insurance industry should issue construction insurance policies like e.g. Car insurance policies to all operating in the construction industry. The building authority should be allowed to issue penalty points and spot fines to individuals not complying with the building standards. When these individuals go to renew their construction insurance, it allows the insurance industry to regulate their behaviours and attitudes by increasing or decreasing their insurance policy.
    e.g. An individual is involed in a car accident, they call their insurance company to reslove the problem. Now think if you are a homer owner and you hire a plumber, builder and his work is substandard and does not comply with the building codes, instead of calling a solicitor you call your insurance comapny and they step in to resolve the problem. Individuals not complying with the building standards would be treated fairly by going through such a system. The clients problems could be better resloved.

    Reply

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