23 May 2017
The following article “Should I opt out of costly compliance paperwork?” 18th May 2017, Irish Times explored the pro and cons of providing paperwork for the Building Control Amendment Regulations (BCAR) of 2014 over the construction of a small garden house-
I am retired and have just got planning permission to build a two-bedroom house in the garden. I understand that regulations introduced in 2014 require paperwork to satisfy all statutory bodies and could cost an extra €3,000-€5,000. As a one-off house, you can opt out of these extra requirements. However, when I die my son, now living in London, may wish to sell the house. Would you advise me to pay for the extra paperwork or opt out? They say that if you leave your affairs in a mess people will be talking about you for a long time – I’d prefer everything to go smoothly. Would opting out of the extra paperwork make it more difficult to sell the house at a future date? Thanking you in anticipation.
It is understandable that anyone building a house, and who is unfamiliar with the Building Control Amendment Regulations (BCAR) of 2014, may see it as an administrative “paperwork” exercise costing money with limited real benefit. You are right to question the potential downsides in taking this “opt-out” course of action.
An amendment to the 2014 Act introduced by SI. 365 of 2015 seemed a tantalising opportunity to save money by availing of an opt-out. However, this represents an easing only – of some supporting documentation, inspection, certification and sign-off requirements. What is missing is the protection through a transparent and rigorous independent inspection and certification regime provided by the 2014 full BCAR requirements demonstrating that the building is in compliance.
While the self-certification requirements, introduced in the 2014 BCAR Regulations, addressed a shortcoming recognised originally in the 1990 Building Control Act (ie self-certification option), this provision was not enacted, at that time, in the 1991 Building Control Regulations.
Bregs Blog: Priory Hall, an apartment development in North Dublin, was evacuated on foot of a court order in 2011. The fire risks were so serious that residents were given hours to pack up and leave while fire engines stood outside. It was a catastrophic failure in regulation, built under a regime of unregistered builders, inadequate insurance, a lack of local authority checks and informal sign-off. The 2014 regulations reinforced this system of sign-off, putting ‘self certification’ on a statutory basis without dealing with the many root causes in the house building industry.
In deciding to opt out, it means you are not required to lodge statutory undertaking and certificates by the designer, assigned certifier and builder, or lodge an inspection plan. You are effectively making the decision to not have a design certifier sign off on the building, and you have decided not to have an assigned certifier inspect and oversee the works. Furthermore, you will not be able to register a Certificate of Compliance on Completion with your Local Authority.
Bregs Blog: You might think that this Completion Certificate is a guarantee, but it comes with few consumer protections and no new rights for you as a buyer. If there’s a defect in the house you will have to go to Court to look for redress; this could take many years and the outcome is not guaranteed. The Priory Hall complex was eventually repaired at a cost of €30m to the tax payer, because the owners had no recourse in law (see post here).
For lodgment purposes, owners are tacitly assuming the roles of owner, designer and assigned certifier. They must complete a valid commencement notice, declaration of intention to opt out, nomination of a competent builder, submit general arrangement drawings (not planning drawings), a schedule of documents and compliance statement. They need to fully consider the potential downside of choosing this opt-out route as, unless they are competent to ensure full compliance, they are electing to remove key safeguards in the 2014 BCAR regulations.
Arguably Opt-outs are assuming an onerous role with limited savings being generated as most of the initial costs envisaged will be difficult to avoid in order to comply.
Bregs Blog: The Assigned Certifier will leave a trail trail of responsibility but it is not correct to call this a guarantee because it is not. However, you may find, like Hansel and Gretal, that this is nothing but a trail of breadcrumbs leading you further down a path of false promises and not to a safely built home. You can still buy a non-compliant home…and it’s all perfectly legal
As owners are not exempted from the building regulations, as distinct from the opt out in the building control regulations, you need to consider your vulnerability. An opt-out may lead to a potential diminution in value or future sales resistance or even exposure in the event of a very significant non-compliance that is not picked up prior to the completion stage.
Before deciding, you should first check with your lending agency and solicitor, as some lenders will actively discourage opt-outs and require full BCAR compliance.
Bregs Blog: There is no legal requirement to include a Completion Certificate in the sales documents, although a building cannot be legally occupied without one and banks require one for a mortgage. A buyer, or their bank, has no way of knowing if an Assigned Certifier has done careful inspections or if, in fact, the developer has cut corners and had certificates signed by his own staff (see posts here and here).
Opt-outs, in particular, are likely to fall back on providing an “opinion of substantial compliance” with planning and building regulations undertaken by an architect, engineer or building surveyor (though not a statutory requirement). Such opinions regarding building regulations are likely to have so many “caveats” (beware of ) in the report that it will provide limited comfort and protection for current owners and can hardly be relied on by future owners.
In conclusion, you are advised to seek legal advice if you decide to opt out as you may only be “kicking the can down the road”. The alternative course, if properly executed, should give you greater peace of mind.
Bregs Blog: There is no reason to believe that buyers can be any more confident of quality and safety under the new system. There are no new legal rights for buyers and there are still no independent inspections of construction sites (see post here),
Kevin Sheridan is a chartered surveyor and member of the Society of Chartered Surveyors Ireland, scsi.ie
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