Building Control – A BETTER way: Collins & O’Cofaigh | Look Back 17

30 March 2017

Just a few days following introduction of Building Control (Amendment) Regulations SI.9 in 2014, past presidents of the RIAI, Eoin O Cofaigh FRIAI and Michael Collins FRIAI published a proposal outlining an alternative practical system of Building Control in Ireland.  We know now that SI9 complex administrative procedures have increased costs for some building types by up to 15% (e.g. school building projects).  In the context of the current housing crisis, BCAR has been confirmed as adding €25k to multi-unit costs per unit and over €50k to the cost of a typical self build, when applied.  BCAR has given no additional consumer protections, and owners who discover defects in buildings post completion are still facing years in the courts to obtain redress, with no guarantee of success.  In this paper practical workable alternatives to Building Control (Amendment) Regulation (SI.9 of 2014) are discussed. Original post here and it was published in March 2014:

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Building Control (Amendment) Regulations – A BETTER way

1. Background

The State should not primarily be liable for the cost of building control nor should the State be liable for defects in construction.

Concerns have been expressed that S.I. 9 of 2014 will not protect the householder in the way it sets out to. In 2012, submissions by non-construction sector stakeholders (NCA) and the Pyrites Panel said that an inspection system independent of the designer and the contractor is needed.

There is a wide consensus across consumer organizations and in the media, supported by World Bank and European Consortium of Building Control studies, that self-certification as in S.I. 9 will not work, particularly for speculative residential development. It works in no other sector of the Irish economy and is even less likely to work in construction.

At the same time, the unintended consequences of S.I. 9 for non-residential projects, especially for complex projects such as hospitals, and for FDI projects are such that the system increases costs and uncertainty unnecessarily.

What is needed is a simple measure to improve and sustain the quality of design and construction, particularly with speculative residential development.

This should be backed by compulsory latent defects insurance to guarantee redress to consumers in the case of the small number of residual defects that will occur, or in the case of financial failure of a development/construction company.

2. Proposal

Replace S.I. 9 of 2014 by a new statutory instrument along the following lines:

  1. Set up a register of “Approved inspectors”, answerable to the building control authority.
  2. This register to be open to architects, architectural technologists, appropriately qualified engineers, and building surveyors, with appropriate qualifications and adequate experience. Admission to be competence-based, with knowledge of building regulations, building control regulations, and building construction.
  3. The Approved Inspector to carry an appropriate level of professional indemnity insurance.
  4. To start with, the system to apply in the speculative residential sector and to the one-off (“self-build”) house.
  5. The Approved Inspector audits the design for compliance with building regulations; and inspects the construction works for compliance with building regulations.
  6. Inspection of designs would include Parts B and M for one-off houses. Pending review, fire safety and disability access certificates would still be required for apartments.
  7. The design team must still prepare full designs and inspect the works as at present. The contractor must build in compliance with the building regulations as is routinely done on well-organized buildings. The Approved Inspector issues reports to the Local Authority at the start and completion of construction, confirming that he has inspected the design and construction and found nothing wrong.
  8. If the Approved Inspector finds non-compliant design, he refuses to issue the Design Certificate until he has been given amended design drawings. Given that the architect will have to explain any such delays to his client, the architect will make sure the designs are right in the first place. This raises design standards.
  9. If the Approved Inspector finds non-compliant construction, he tells the contractor and the architect, and he has the ultimate sanction of being able to issue a “Cease Works Notice”. He will refuse a Completion certificate until the matter is put right.
  10. The Approved Inspector inspects 100% of designs and 100% of sites. On top of this, the building control authority profiles risk, and inspects a small number of designs and building works as indicated by its risk analysis, to ensure that the overall system is working properly.
  11. If the Approved Inspector is negligent, he can be struck off the register and can be sued.
  12. Latent Defects Insurance, paid for by the developer with a one-off up-front payment, is put in place to pick up any defects which get past. (The detail needs further discussion.)

3. Approved inspectors, independent company auditors, and the UK

This system resembles the system of independent auditors of company accounts. A company has an internal accountant. The independent auditor inspects the annual accounts and signs off on them. The accounts are lodged to the Companies Registration office. The auditor is paid for by the company and is answerable to the State. The auditor is not responsible for the complex task of preparing the accounts in the first place: his sole task is to check for financial probity.

A developer wants to build a building. The Approved Inspector inspects the design and the construction and signs off on them. The designs are lodged at the Building Control Authority. The Inspector is paid for by the developer, and is answerable to the Building Control Authority. The architect, engineer and builder have the complex task of designing and building the building; the inspector’s task is to focus exclusively on building regulations compliance.

This Approved Inspector system resembles the “Approved Inspector option” in the building control system in England and Wales. The system is also the same as that in Northern Ireland except that here, the Approved Inspector, answerable to the local authority, substitutes for the N.I. building inspector in local authority employment.

4. Why is this system better than that in S.I. 9?

  • The cost to the State is minimal. The developer pays the fee of the Approved Inspector. The only cost to the State is to maintain the register and monitor the operation of the system. This could be funded through an appropriate licence fee.
  • The learning experience for a young architect of having their designs audited by an experienced architect or engineer will be intense and immensely fruitful. This will drive better design standards.
  • The learning experience for a contractor is to have the experienced Approved Inspector arrive on site, who has inspected many such sites and knows what to look for, concerned with nothing except building regulations compliance, with local authority backing.
  • The system is better for the State. It will deliver better design and construction, not just better paperwork.
  • It gives the State an additional layer of protection. The Approved Inspector with annually renewed and proven professional indemnity insurance stands between the building defect and the exchequer.
  • The system has the capability of solving problems around experienced technologists whose livelihoods are undermined by S.I. 9.
  • It solves the self-builder issue. The system gives the self-builder a straightforward independent inspection system which he pays for, the same as anybody else. If his designs are good enough – they pass, at no cost to him. If they are not good enough, he must prepare an adequate design the same as anybody else, however he so chooses. If his building is good enough when the Approved Inspector arrives – that is fine. If not, the self-builder must rectify the defects the same as anybody else.
  • It solves the FDI issue. S.I. 9 was introduced to solve problems in the residential sector but affects all construction projects of any significance. By revoking S.I. 9, it allows the technologically advanced (Intel) FDI project proceed under self-certification, as is better for many reasons.
  • The system requires no change to construction contracts and hence will not cause delays in the construction sector. The Approved Inspector operates independently of the contract administrator (Architect or Engineer) and has statutory authority.
  • The system is better for the consumer. Per the submission of the National Consumer Authority, this will give better results than a system of self-certification.
  • The system protects the consumer from loss with a no-fault system of redress and no litigation is needed.
  • The person who buys or rents a new home gets independent third-party audit by experienced professionals, answerable to the local authority.
  • The system is better for the construction sector. It will drive higher standards through dedicated experienced inspectors who with larger and recurring workloads will feed-back into better design and better building.
  • Through feedback to the local authorities of the inspectors’ experience across many designs and sites, systemic problems will be spotted earlier.

5. Conclusion

A system as outlined above can be set up quickly. It involves no major change in existing contractual and legal structures. It needs no primary legislation: the Building Control Act already provides for the designation of such persons to act in this capacity.

Such a system will have the support of the consumer organisations and the public.

The above opinion piece was written by Michael Collins (RIAI President 1986-1987) and Eoin O Cofaigh (RIAI President 1998-1999) in late 2013. It has since been updated to refer to the new SI 9 of 2014 and is submitted here by Eoin O Cofaigh.

 Other posts in “Look-Back” series

 Defective “Celtic Tiger” projects : The Cubes | Look Back 17

Building Regulations add to Vacancy Rates | Look Back 16

Here’s How to Avoid Another Longboat Quay: Dublin Inquirer | Look Back 15

Notes from the (thermal) edge: Part L Compliance (2 of 2) | Look Back 14

Building Surveyor’s Inspection Plan + Form | Look Back 13

Murray letter to Senators: BC(A)R SI.9 (SI.105) | Look Back 12 

Is the scene set for another Priory Hall? | Look Back 11

Simon Carswell: Politicians, Construction industry lobbying and banking | Look Back 10

Legal perspective: consumer benefit? BC(A)R SI.9 | Look Back 9

Minister Hogan defends BC(A)R SI.9 | Look Back 8

Christmas Past – What did you hope for from Santa in 2013? Look Back 7

Ghost estates and public housing: BC(A)R SI.9 | Look Back 6 

Government Reports + Professional Opinion Ignored in SI.9 | Look Back 5

SCSI | “Highly unlikely Priory Hall would happen in Britain”- Look Back 4

BRAB and BC(A)R SI.9- Look Back 3 

Inadequate Regulatory Impact Assessment for S.I.9- Look Back 2

World Bank Rankings, Ireland & SI.9 – Look Back 1

3 thoughts on “Building Control – A BETTER way: Collins & O’Cofaigh | Look Back 17

  1. Nial Murphy Chartered Engineer

    The suggested system is unquestionably better than the current one, but then almost anything would be. It does not however say (or imply) that one of the greatest difficulties with the current system would change, and that is the requirement for certification of absolute and unqualified compliance- this is an impossibility, but nonetheless is required by the current system.

    (On a slightly separate point, note also that, in the current system, an AC commits irrevocably and without qualification, when lodging the CN documentation, to providing this certification of perfection on completion, thus being liable to take all necessary steps to ensure that he can so certify – it seems to me that it is, at the very least, arguable that an Assigned Certifier cannot get out of this commitment by saying that an Ancillary Certifier, subcontractor, material or component manufacturer or whoever has failed – the Assigned Certifier has made a commitment, effectively, not just to certify perfection, but to ensure that that perfection is achieved!)

    Reply
  2. Michael Tweed

    The opening argument “the state should not primarily be liable for the cost of building control” is based on right wing political ideology that the State should have minimal involvement in the affairs of its citizens. The opposing argument is that the State has a significant role to play in the welfare of its citizens and therefore has the primary responsibility for building control. Because it is good for the citizens to be assured that buildings will be to a proper standard and safe to use we should be prepared collectively to finance the cost of building control. However there are ways of ensuring the costs are kept minimal. For example we don’t need individual building control departments in each of the 31 local authorities for a population of 1.7 million households (an average of one building control department per 54,000 households). If the single Building Control Department of Dublin City Council can manage a population of 209,000 households, then 8 such departments would suffice for the entire country. Such consolidation would not only be cost effective but would also make for consistency in the interpretation of the guidance to the Building Regulations, the level at which the bar is set for compliance of the set of statements of intent which are the Building Regulations. Where I would completely agree with the article is the benefit in educating architects, engineers, designers and contractors. Having independent auditing will undoubtedly drive better standards throughout the industry. But in a system overseen by Building Control Departments the person who buys or rents a new home knows that the construction design has been approved as compliant with Building Regulations by a Building Control Department and that the construction works have been inspected and passed as compliant by periodic inspection of the works by the Building Control Department. That will ensure good quality safe buildings.

    Reply
  3. Michael O'Neill

    I second Nial Murphy’s comments

    The main problem with this piece is the fact that the authors seem to have taken their terms of reference from BC(A)R i.e. the unwarranted level of liability attached to the Certifiers following certification of Absolute Compliance. This is the core problem which needs to be tackled first. The rest is window dressing.

    I note the following:

    The main certifiers liabilities might be mitigated if there was sufficient standing under law for the Ancillary Certificates, but there is not. In any case, any main certificate wording would require to state clearly that it rested on such certificates to spread the liability.

    At the moment, no cert wording states this and what is worse, by certifying Absolute compliance, the main certificates effectively prevent the two main certifiers from enjoining other parties to any case.

    How could they counter sue when their own certificates state there was absolute compliance?

    The existing BC(A)R certificating regime is a distraction, waving insupportable pieces of paper in front of purchasers to distract them from the fact that the people they need to sue when things go wrong – the builder and developer, have gotten away Scott free – again!

    The only way to beat this rigged blame game is not to play

    Reply

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