Confused + bewildered by Building Regulations? | Michael Tweed

The following comment was submitted by Michael Tweed MRIAI on 1st June 2017.

As usual, the newspaper article “Should I opt out of costly compliance paperwork?” 18th May 2017, Irish Times is another article about our Building Regulations which is muddled, inaccurate and in some cases incorrect.

The question asked was “would opting out of the extra paperwork make it more difficult to sell the house at a future date?” It is clear how little understanding the questioner has of BC(A)R when earlier he states, “I understand that regulations introduced in 2014 require paperwork to satisfy all statutory bodies…” BC(A)R requires much more than “paperwork” at a cost of “an extra €3000 – €5000.”

Let’s start at the beginning. In 1991, the Building Control Act for the first time required all buildings to be designed and constructed in accordance with a set of building standards, published as Regulations to the Building Control Act. Unfortunately, a golden opportunity was missed because in the same Act no statutory obligation was placed on Building Control Authorities to either approve construction designs, or inspect and approve construction works and instead placed the sole statutory obligation on building owners, designers, and builders to ensure the design and construction of buildings complied with the Building Regulations. The missed golden opportunity was the statutory obligation on Building Control Authorities to provide independent policing of the Building Regulations. From the beginning this would have provided consumer protection and improved building standards.

Building Control Authorities were given powers to request drawings demonstrating compliance with the Building Regulations and to enter a building site and inspect the works in progress but these powers were discretionary only. There was a statutory obligation to alert the Building Control Authority of new construction work by way of the Commencement Notice but absolutely no statutory obligation on the Authority to inspect the works. As an example, between 1997 and 2008 I was involved in the design and construction of between 7000 – 8000 apartments. In that period, I was once asked to submit drawings and calculations to show that the building complied with Part L and I only recall one building inspection by a Building Control Officer. I doubt that my experience was unique!

No regulatory authority granted approval of designs or inspected buildings and passed them as compliant. From 1992 until 2014 there was no requirement to have a Certificate of Compliance. Architect’s Opinions on Compliance were drafted by the RIAI but let’s be crystal clear, they have no legal connection with the Building Control Act! They simply filled a void, providing some form of documentary evidence of compliance for lending institutions providing loans where the building was the security on the loan. That is their sole purpose. As they are based on an opinion given on foot of a very limited regime of superficial inspections they are of little value, and since opinions differ they are virtually useless, as has been demonstrated in the aftermath of the discovery of all the post boom building problems. But they were the magic piece of paper capable of releasing funds!

BC(A)R has been spun by politicians as the solution to the problem of building defects and non-compliant buildings and giving the consumer safeguards. This is a lie. BC(A)R does no such thing. Building Control remains self-regulated, but now there is a scapegoat, the Assigned Certifer, to whom the same politicians will gleefully point as being to blame. There is however no greater consumer protection with the appointment of an Assigned Certifier, and since that person is employed by the building owner this is still self-certification.

The added expense of €3000 – €5000 comes not from reducing the “paperwork” necessary, but from the understandable desire of an Assigned Certifier to mitigate their liability to the greatest degree. Hence there are more inspections, there is more confirmation paperwork, and more ancillary certification to help dilute the Assigned Certifier’s liability. I say this is understandable because otherwise the liability on his shoulders alone will be so great that he will never find anyone willing to indemnify his professional liability! And in any case even in a relatively simply building few Assigned Certifiers will have the range of expertise to determine comprehensive compliance.

S.I. 365 of 2015 provides for opting out of the requirement to have an Assigned Certifier and consequently no requirement for Certificates of Compliance.

So, to answer the question, will this make it more difficult to sell the house at a future date, probably not, providing the construction of the house can be financed without a lending institution requiring a Certificate of Compliance, and hence requiring an Assigned Certifier to be appointed. If the house is complete, compliant with Planning Permission, and compliant with Building Regulations it should have sound title. Therefore, there should be no impediment to a future sale.

Opting out will be determined, not by a question of difficulty to sell in future, but by what requirements might occur in the manner of financing the construction works.

The claims made by the writer of the newspaper article regarding consumer vulnerability and protection are wrong, as the Breg Blog commentary points out. Unfortunately, yet again the general public read a reputable newspaper and receive wrong information. Little wonder they are so ill informed!

Other posts of interest:

S.I.9 : Is the scene set for another Priory Hall?

Could Rapid Build Housing mean Rapid Fire Spread? | Michael Tweed B.A. B.Arch RIBA MRIAI

Sunday Business Post | Karl Deeter “Building regulations – rules don’t deliver results”

How developers are “adapting” to the new Building Control regulations

You can still buy a non-compliant home…and it’s all perfectly legal | SI.9 Loopholes

BC(A)R SI.9 Submission Series No 3: The Legal Environment and Consumer Protection | Deirdre Ní Fhloinn

Legal perspective: consumer benefit? BC(A)R SI.9 | look back 9

Legal Advice for Multiple Unit Development Completions | Arthur Cox

Summary of Legal Posts- BC(A)R SI.9

Additional Engineers’ fees for school projects | SI.9

RIAI ALERT: Inspection Fees for House Extensions

RIAI: time needed for schools- BC(A)R SI.

FACTCHECK 1: “If my house is defective, Do I have any rights?


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