Category Archives: S.I.80

SI.9 – How Certain is the Certifier?| Eamonn Hedderman FRIAI

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The following opinion piece* was received from Eamonn Hedderman FRIAI, a principal in Holly Park Studio in Blackrock, Co. Dublin and a candidate in the RIAI Council 2015 election who is in no hurry to join the SI.9 race to the bottom!

Completion Certificates and the Assigned Certifier. How certain is the Certifier?

Since the introduction of the term Assigned Certifier under the Building Regulations I have been concerned at how easily those drafting the legislation have presumed a parity of qualification amongst those professionals approved to take on the role, namely:

(a) Architects that are on the register maintained by the RIAI under Part 3 of the Building Control Act 2007; or

(b) Building Surveyors that are on the register maintained by the SCSI under Part 5 of the Building Control Act 2007; or

(c) Chartered Engineers on the register maintained by Engineers Ireland under section 7 of the Institution of Civil Engineers of Ireland (Charter Amendment) Act 1969.

It is questionable whether all prospective Employers will appreciate the very real differences in the skill sets of those named professions above and more significantly whether the professionals in question will be objectively critical, in the present economic climate, when it comes to deciding whether they are competent to take on the role.

I have long held the view that to do justice to the role of Assigned Certifier, with its inherent liabilities, the incumbent will have to become a full time site professional and will have to limit such services to one project at a time.  Such an onerous task will require adequate remuneration and yet there is significant evidence of professionals agreeing to take on the role for fees that could not possible cover out-of-pocket expenses, let alone provide even a minimum wage.

God be with the days when Architects could confidently advise Clients of the advisability of employing the services of a Clerks of Work or Site Architects and, that the Architect’s opinion was sufficiently respected to ensure that funding for such services was made available.

At what stage did we accept that budget cuts could dispense with these important site supervisory roles?

Why did we add that service to our standard service, regardless of what the appointment documents might suggest?

Is it not as a direct consequence of the OVER SERVICING of our clients that the ‘powers-that-be’ expect that we will Kowtow and take on new responsibilities and greater liabilities without question?

If we do accept the role of Assigned Certifier how will funding of the ongoing Professional Indemnity Insurance be managed when the certifier decides to retire?

One of the principal warnings issued to Members by the RIAI over the past year has been that if Architects fail to take on the role of assigned Certifier, there are other professional more than willing do so.

Well, let them at it.

I was recently appointed to monitor the construction of a large domestic extension adjoining my clients property.  Planning permission had been acquired in 2014 but there was no Architect involved on the project and the Assigned Certifier was not a Registered Architect.

When first introduced to the Assigned Certifier I asked if they felt comfortable in their competence to take on such an onerous role, and was assured that there were absolutely no concerns.

Perhaps such comfort is borne out of an ignorance of the pressures, traditionally taken on by the Architectural Profession, of taking full responsibility for the coordination and management of construction projects.

What was disturbing about the whole affair was that during the course of the construction I had to highlight a number of boundary and detail issue which were not in compliance with Building Regulations, leaving me to wonder if such oversights were common throughout the project.

I wonder how valid the Assigned Certifier’s Completion Certificate will be. Will anyone be able to rely on it?

Would I, as an Architect representing a prospective buyer for the property, be able to comment on the advisability of accepting that such a certificate was evidence of Compliance.

And, what documents will the legal profession be seeking as evidence of compliance in future conveyancing?

Do we as a profession know?

Does the RIAI, SCSI or EI know?

Does the Law Society know?

Eamon Hedderman FRIAI

* The BRegs Blog Team are happy to consider similar submissions for possible publication.

Other posts of interest:

Completion Certificates for Multi-unit Housing 

Practical Post 19: Phased completion & BC(A)R SI.9 

BCMS Completion Stage | No Ancillary Certificates required!

BCMS Alert | Last day for Christmas Completion!

ALERT | SI.9 Christmas Completion Countdown

SI.9 causing major delays to school projects

Imminent changes to SI.9 announced | Minister Alan Kelly T.D.

SI.9 completion stage and the BCMS | Clouds are gathering!

5 Tips for Completion Certs

Build in 8 hours, wait 3 weeks for a Completion Cert!

Press: RIAI fearful Local Authorities will start “finding something to invalidate as a method of workload control”

Are Local Authorities ready? Industry concern for completion stage: BC(A)R SI.9 of 2014

 

SI.9 – Problems with BCMS Inspection Plans | Barry Kelly MRIAI

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The following opinion piece* was received from Barry Kelly MRIAI, a principal in Carew Kelly Architects – a small practice based in Dublin 2 – and a candidate in the RIAI Council 2015 election. Like many similar practices he finds the imposition of SI.9 to be a massive burden with a huge impact in terms of liability, cost and time. BReg Blog notes shown [ ].

Problems with Inspection Plans

On 27th November 2014 Engineers Ireland published an article by the BCMS. This was in relation to a sample Inspection Plan that lists seven stage inspections for compliance for a project [Link to article:]. In the article author Mairéad Phelan, project manager of the Building Control Management System notes:

Preliminary and completed inspection plans: It important that the number and type of inspections to be carried out relate to the complexity of the project, the relevant building-compliance issues and the milestones in the project. An example of inspection stages with the relevant building regulatory compliance issues is below. It is compliance with Part A-M with which the BCAs (Building Control Authorities) are concerned.

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I question whether ‘7 stage inspections’ are adequate (even for a house build) and comparisons need to be drawn to a Building Surveyors ’33 Stage inspection’ [post hereand the RIAI Inspection Framework which is considerably more complex.

One colleague points out that “While every assigned certifier is free to set the number of times they call to a site, they are required to be comprehensive both in the planning and preparation of a project, the level of and number of inspections, and in compiling all documentation including ancillary certificates from consultants who will be inevitably involved. While a bank, for mortgage applications may require as little as 5 or 6 inspections, SI.9 requires diligent Assigned Certifiers to carry out many more. If they are not carrying out the additional inspections or working with consultants then they have failed in their duties”.

In particular, I question the following anomalies and omissions from the BCMS  ‘7 Stage Inspection Plan’:

Part E (Sound) is inspected at wall plate level this is before roof/ windows/ closing in of the main envelope, so how can a sound test be completed when the building envelope is not completed?

‘First fix’ services are inspected at CompletionClearly this is not proper sequencing on site, particularly when electrical services do not fall within the building regulations.

Part M (Access) is inspected at foundations level and completion only note in article “The most commonly observed compliance issues observed by BCAs are: 9. Steps to entrances (Part M), but access issues are relevant throughout the build.

Part G (Hygiene) this is completely omitted from inspection plan.

Part J (Heat Producing Appliances) the inspection does not happen until the roof is on.

Part L ( Fuel & Energy)  is inspected when the building is at Ground Floor Level (again out of sequence).

It is hard to see how there can be a level playing pitch for consultants competing for work when there is no agreed standard in relation to inspections. More worryingly, as one colleague noted “when I land in court will the other side argue that I cut corners if I did not record an inspection every week?”

*BRegs Blog Admin. Team will consider similar submissions for publication.

Other posts of interest:

Completion Certificates for Multi-unit Housing

BCMS Completion Stage | No Ancillary Certificates required!

‘Onerous’ Building Regulations must be amended – Minister Kelly

BCMS Alert | Last day for Christmas Completion!

SI.9 completion stage and the BCMS | Clouds are gathering!

When is an extension not extensions? | The 40M2 question…

40 SqM SI.9 exemption update | 18 November 2014

BCMS | Chambers Ireland Excellence in Local Government Award

SI.9 “Fully designed, or equal approved?” | Mícheál de Siún MRIAI

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The following opinion piece* was received from Mícheál de Siún MRIAI, a Director of DE SIÚN SCULLION ARCHITECTS and an election candidate for the RIAI Council 2015.

Building Control (Amendment) Regulations (S.I. 9 of 2014) compounds the contradiction at the heart of public procurement: Fully designed, or equal approved?

It is a commonly held misconception that the introduction of the ‘new’ forms of Public Works Contracts restricted architects in their choice of products and precluded the use of a trade names followed by; ‘or equal approved’. In fact this is quite a long way from the truth. The restriction on the use of trade names when specifying products in public procurement arises from the EU Procurement directive 2004/18/EC (transposed into Irish Law in 2006). That this happened around the same time as the introduction of the Public Works Contracts is simply coincidence. Moreover, the suite of Public Works Contracts is conceived to provide certainty to a contracting authority, and ultimately to the exchequer.

The EU procurement directive is conceived to ensure free and fair competition in the supply of goods and services to government agencies: and these two concepts, enshrined in a single process, frequently result in a fundamental conflict of intent. After all, what could be more uncertain than a specifier describing a specific product in a way that does not preclude, nay invites, alternatives. The certainty strived for in the Public Works Contracts, and the liberal competitive principle enshrined in the EU procurement directive are pulling in two different directions.

Indeed the existence of the procurement directive flies in the face of any possibility that output specifications prepared for public projects and issued to bidding contractors would be ‘fully designed’ (a term that does not appear anywhere in the Public Works Contract forms or guidance notes). Like it or not, the very act of choosing a product, and discounting others, based on a technical specification, is an act of design.

Bear in mind that a contractor is required to undertake this selection process during the tender process, when the job is being priced. Even afterwards, in the ad-hoc world of product submittals, post contract signing, a specifier will not assume responsibility for procurement decisions made by a contractor; a specifier will only retain responsibility for his or her initial specification – one that by (EU) legislation cannot be complete (in that the products that will actually be used cannot be identified).

Enter BC(A)R, SI. 9 of 2014. Who is the designer?

Architects and Employer Representatives do not use the word ‘approved’ when reviewing contractors’ product submissions – because under the contract the sole responsibility for ensuring the selected product conforms with the performance specification lies with the contractor – and anyway, the products are not ‘or equal approved’. But the Design Certifier is not operating under a contract. His or her responsibility arises in legislation.

In its attempt to carve out a simple distinction between ‘designer’ and ‘builder’, the legislation has missed this subtle contradiction in public procurement. The EU directive invites competition, alternatives & innovation in the provision of goods and services; even in the simplest examples this entails decisions – effectively design decisions. In medium to large scale projects, these decisions will run to literally hundreds of product submittals, with a direct financial incentive for the builder to get the cheapest ‘compliant’ product over the line.

So who decides what is compliant?

  1. Must the Contractor now issue a plethora of ancillary design certificates for every procurement decision made where products are chosen by him (backed up by PII)?, or;
  2. Does the Certificate of Compliance (undertaking by Builder) mean that an architect will no longer need to deal with requests for ‘approval’ of products or technical submittals?, or;
  3. Does the Design Certifier assume responsibility for product selection (by the Contractor) that they are excluded from making under EU legislation?

Like in so many other aspects of SI. 9 of 2014, the jury is out.

*The BRegs Blog Admin. Team will consider any similar SI.9-related submissions for publication.

Other posts of interest:

Design Certifier – Can we leave it to the builder to sort out?

Problems with role of Design Certifier: BC(A)R SI

Design Certifier | RIAI advise separate appointment

Public Sector projects – is SI9 necessary?

John Graby – RIAI, CEO | “Phil Hogan did not bulldoze through SI.9′

SI.9 | Where’s the accountability?

SI.9 and PII Alert | Practice makes perfect or does it?

SI.9 causing major delays to school projects

‘Onerous’ Building Regulations must be amended – Minister Kelly

Engineers Journal | BCMS 9 months on

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The following article appeared in Engineers Journal on 25th November 2014. It shows a typical inspection plan and notes the 12 most common mistakes made by users of the Building Control Management System (BCMS). Completion stage issues may not be fully visible at this point due to the low level of completions to date. Progress under the new system is noted:

“At the date of writing and post 1 March 2014, the BCMS registered:

  • 68,629 documents uploaded;
  • 4,135 valid commencement/7 Day (CN) notices;
  • 614 invalid CNs;
  • 1,435 CNs in progress i.e. at various stages before submission to BCMS;
  • 204 valid Certificates of Compliance on Completion.”

For link to article “Building Control Management System – how it works in practice” click here. Extract:

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Nine months on since its implementation, Mairéad Phelan offers an update on the Building Control Management System and advises on how to avoid common pitfalls in the submission process

25th November 2014 | Engineers Journal

Author: Mairéad Phelan BE, CEng, FIEI, MBA, project manager of the Building Control Management System

Prior to 1 March 2014 – in spite of the fact that compliance within the building industry was/is basically self-regulation or ‘light touch’ with limited independent inspection – the experience of the local authority (LA) sector was that many ‘builders’, ‘developers’ and ‘designers’ had no technical training, legal and/or professional advice regarding the science of construction. The outcome of this was some of the worst examples of building construction, which ignored the Building Regulations and, in some cases, endangered occupants of these buildings.

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Opinions on compliance with Building Regulations were churned out for a fee, with compliance assured by an ‘opinion’ certifying the works. It has been the experience of building control authorities (BCAs) that a large proportion of buildings were constructed using only the planning permission drawings, with no reference to building regulations and with drainage systems being constructed by anyone who happened to own a JCB. In many of these cases, where things have gone wrong, it has been the local authority/taxpayer that funded the resolution, despite Building Regulations mandating that all building must be ‘fit for purpose’.

BCAs have found it extremely difficult and costly to prove not ‘fit for purpose’ in a ‘building control’ (BC) enforcement case and get costs reimbursed. An effective Regulatory Compliance System for BC within the 31 local authorities as a shared-service initiative was initiated by the County and City Managers Association (CCMA) as a collective response to these challenges and the introduction of the Building Control Amendment Regulations (BCAR) i.e. S.I. 9 and S.I. 105 of 2014.

Building Control Management System overview

S.I. 9 of 2014 (signed into law on 17 January 2014 for implementation on 1 March 2014) states that the “Building Control Management System [BCMS] means the information technology-based system hosted by the Local Government Management Agency and developed to facilitate the electronic administration of building control matters by building control authorities [is] the preferred means of building control administration”.

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The BCMS is a collective response by the CCMA/Local Government Management Agency (LGMA) to provide oversight of building commencements in Ireland. It is project managed by Fingal County Council and centrally hosted; this online information technology-based Building Control Administration System enables electronic administration and building regulatory oversight of construction by the 31 building control authorities.

The implementation of BCAR provides the industry with a new opportunity to ‘build’ for the future with the introduction of mandatory certification by professionals, BCMS online assessment of projects, inspection plans and supporting documentation. Collaboration with the users was the key to successful system design.

The main focus of the project is:

  • To provide for the health and safety of people in or about buildings,
  • To ensure access for all,
  • To conserve fuel and energy,
  • To ensure sound, well-built homes, amenities and commercial buildings and
  • To provide electronically a public register of what is being built, by whom and where.

For practitioners and professionals in the building industry, the BCMS provides an online repository for lodgement of statutory documents to the LA, thus providing a quicker assessment and validation process. The BCMS has the ability to notify its 6,000 users of issues regarding the building industry – for example, if a fraudulent or defective product was placed on the market, the BCMS can notify all on the system and issue a warning regarding same i.e. can get the information to the relevant people in real time.

For managers and planners, the level and type of construction activity in a county can be gleaned in real time along with materials used, contractor, designer information etc. For building control officers, they have real-time information on enforcement issues in other counties so that a builder can be prevented from replicating breaches of Building Regulations across county boundaries.

At the date of writing and post 1 March 2014, the BCMS registered:

  • 68,629 documents uploaded;
  • 4,135 valid commencement/7 Day (CN) notices;
  • 614 invalid CNs;
  • 1,435 CNs in progress i.e. at various stages before submission to BCMS;
  • 204 valid Certificates of Compliance on Completion.

The chart illustrates the valid and invalid web and counter submissions registered on the BCMS to date. These BCMS submissions to the 31 BCAs are constantly reviewed by a BCMS oversight group and it is noted that the quality of the submissions have greatly improved since 1 March.

BCMS nine months on: submission issues & common mistakes

Roles and duties: It is important that all the stakeholders (owners, builders, designers and assigned certifiers) involved are clear on their roles and familiarise themselves with the requirements of the Building Regulations and Building Control Regulations. In the Code of Practice for Inspecting and Certifying Buildings and Works are set out the roles and duties of owners, builders and designers who are responsible for compliance with the Building Regulations, along with the roles and duties of assigned certifiers who are responsible for liaising with the BCAs, preparing and implementing inspection plans and collation of compliance/ancillary documents/certification for Certificate of Compliance on Completion.

The roles and duties of the BCAs, who administer the BCAR process and may take enforcement, are also set out in in this Code of Practice and the CCMA Framework for Building Control Authorities.

It is important that all project stakeholders register with the BCMS and the designer, builder and assigned certifier must be nominated for their role by the owner and must accept their role. To register and subsequently login to the BCMS, each stakeholder must have their individual email address, which is the unique identifier and a password.

Statutory forms: It is important to complete each section carefully, download each form when fully completed, have the specified stakeholder sign the form and then upload to the BCMS. Fully complete, the mandatory online assessment will inform the BCA risk-based inspection programme. CNs and CCCs must be accompanied by certain specified mandatory documents along with a schedule/table of compliance documentation which include plans, calculations, specifications, ancillary certificates and particulars.

It is important to pay attention to completing Q. 6 of CN and Annex to the CCC for compliance purposes. Compliance plans should relate to compliance with Building Regulations and not specified ‘for planning purposes only’.

The CN mandatory accompanying documentation is set out in the table below:

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Preliminary and completed inspection plans: It important that the number and type of inspections to be carried out relate to the complexity of the project, the relevant building-compliance issues and the milestones in the project. An example of inspection stages with the relevant building regulatory compliance issues is below. It is compliance with Part A-M with which the BCAs are concerned.

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The most commonly observed compliance issues observed by BCAs are:

  1. Underfloor fill-panel fixings, pyrite (Part A, C, D);
  2. Moisture ingress-radon, DPC (Part C;
  3. Fire resistance-eaves, party walls, ducting (Part B);
  4. Condensation and mould growth (Part F);
  5. Frozen pipes, attic tank, stopcocks (Part G);
  6. Septic tanks overload, flooding (Part H);
  7. Flues, location, size, burners (Part J);
  8. Balcony detailing, stair rails – wrong height, glass (Part K);
  9. Steps to entrances (Part M);
  10. BER calculations do not exist, stud fixings, cavities clear of mortar (Part L);
  11. Timber frame-fixings, vapour control, cavity barriers, fire stopping;
  12. Sound transmission, flooring detail, insulation (Part E, L).

Regard to these common building defects and other individual particular issues when completing the preliminary inspection plan is recommended. To ensure smart use of resources, inspections by BCAs are either random or risk based having regard to: the use of the building; the type of construction; the level of experience of the design team and the builder and; past experience regarding compliance by the stakeholders involved in the project. To ensure a fair and transparent LA inspection regime, Phase II of the BCMS development will enable an automatic random and risk-based inspection data-interrogation system; the data being mined from the online assessment and the generation of a ‘Building Control Standard Inspection Form’.

Certificate of Compliance on Completion

The Certificate of Compliance on Completion (CCC) must be signed by the builder (Section A) and the assigned certifier (Section B) and it is important to complete the CCC Annex. The Annex should detail the “Table of Plans, Calculations, Specifications, Ancillary Certificates and Particulars used for the purpose of construction and demonstrating compliance with the requirements of the Second Schedule to the Building Regulations and showing, in particular how the completed building or works differ from the design submitted to the Building Control Authority prior to construction”. Details of relevant plans may be listed and attached to the CCC.

It is only necessary to upload the Statutory CCC Form, the inspection plan as implemented and the annex/table/schedule of compliance/ancillary certificates and documents which demonstrate how compliance with Regulations was achieved. Of importance here is the documentation of details or changes in design/construction which differ from those details listed in the CN Q6 Schedule. These documents/ancillary certificates listed in this annex/table should be available for upload if requested by the BCA.

Any BCA requests, warning or enforcement notices issued during the construction should be resolved and this noted in this annex. For phased or multi-unit developments it is important that the CCC details how the phase, the subject of the CCC, complies with the Building Regulations as a stand-alone development i.e. compliance should not be dependent on any phases not yet constructed.

The exercise of reasonable skill, care and diligence has been discussed by many since the implementation of S.I. 9 of 2014. It has been the experience of BCAs that where competent professionals, who exercised reasonable skill, care and diligence, were/are involved in building projects from design to completion, enforcement issues are an absolute rarity. Almost all BCA enforcement issues have been as a result of the non-existence of the competent professional and non-existence or inadequate design details in the building project.

Summary

S.I. 9 and S.I. 105 of 2014 was a Government response to the building boom from 2002-2007. The main aims are to reform and strengthen the building control system in Ireland through the introduction of mandatory certificates of compliance and the lodgment of compliance documents at both commencement and completion stages. The LGMA-implemented BCMS enables more efficient pooling of building control staff and resources, along with the implementation of standardised approaches and common protocols, i.e. consistency with better support and further development of the building control function nationwide.

The health and safety of people in or about buildings and compliance with the Building Regulations is paramount. Owners, builders, designers, assigned certifiers and building control officers collaborate throughout the BCMS registration, CN and CCC validation process to ensure safe, compliant buildings. The Code of Practice for Inspecting and Certifying Buildings and Works, along with the Framework for Building Control Authorities, provides stakeholders with guidance and promotes consistency in the BC process. Since the implementation of the BCMS, CN and CCC submission compliance quality has greatly improved as has knowledge of building control by stakeholders.

If stakeholders complete the CN documentation in full while having regard to the common building control regulation and building regulation mistakes, compliance/CCC is easier to achieve i.e. time spent in getting the CN process correct is worthwhile to eliminate or mitigate the risk of defects at completion stage, which are expensive and difficult to correct. CN compliance documentation will also inform the CCC process and it is important to note a CCC is expected to cover full compliance in the case of phased and multi-units developments.

Part of a BCA’s role is to promote good practice in building control, along with its administration and enforcement role. Stakeholders are advised to liaise with their BCAs in relation to regulation issues. BCMS issues can be emailed to info@localgov.ie.

Mairéad Phelan BE, CEng, FIEI, MBA is project manager of the Building Control Management System. Prior to this, she was senior engineer in Fingal County Council’s Built Environment, Road Safety and Transportation Departments. The bulk of her experience is in project management of large building construction and civil engineering projects. She worked as an area/town council engineer in Carlow County Council, along with performing the role of conservation officer. Her early career was spent working with Nicholas O Dwyer Consulting Engineers on major water and drainage schemes. Phelan holds Diploma in Highway & Geotechnical Engineering, a Diploma in Project Management and a Diploma in Law.

CIAT + Architectural Technologists | Michael Quirke

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The comment below was received from Michael Quirke MCIAT regarding a previous post “RIAI + Architectural Technologists | Malachy Mathews“. The BReg Blog Team considered that it merited wider reading.

I do not know any Chartered Architectural Technologist who does not hold Professional Indemnity Insurance (PII). It is certainly not possible to be a full member of CIAT without PII. I do not know how one could be expected to be taken seriously in private practice without adequate PII cover. Adequate should include the correct detailed disclosure of all relevant information on the proposal form. Have all those engaged in “Assigned Certifier” roles informed their insurers of the changes to work practices since filling in their last proposal form? If not then you are playing with fire.

Are Architectural Technologists happy to take on the role of Design and Assigned Certifier?

Firstly they are not legally permitted to do so at present as we are excluded under BC(A)R. Besides that I would not generally be enthusiastic to do so. Anyone who has spent a reasonable amount of time reading the legislation and comments about it should now be well aware of the massive, onerous liabilities they are taking on in acting in the Assigned Certifier role.

Having worked for a number of architectural, engineering and property management companies over many years that involvied thousands of site inspections before BC(A)R where one was worn to a thread arguing with builders about poor workmanship, I shudder to think of what I would be facing if I acted as an Assigned Certifier in the future i.e. if permitted under amended or new legislation to do so.

I am absolutely astounded that so many architects are taking on the role of Assigned Certifier. To do one’s job correctly as an Assigned Certifier will involve a huge number of hours on site; it is a real worry. Take as an example: a 45 sq.m. extension to a private dwelling with two additional radiators linked to the existing heating system. Is it reasonable for the architect to specify, inspect and certify the piping, radiators, thermostats on the radiators, insulation, the point of connection to the existing system, pressure test and test run before it is covered up? Could the Assigned Certifier then be held liable if a subsequent leak in the new pipe work causes serious damage? Was the Ancillary Certificate furnished by the plumber or did you insist the client engage an M&E consultant, even though it was a small project? It seems it will not matter either way, as under BC(A)R the Assigned Certifier is the best target for the client going to court? Is that the case or are you not sure? Well you simply cannot be sure because unlike the plumbing system, BCAR certificates have not been pressure tested yet. There is no precedent.

I suspect that any small architectural practice insisting the client engages an M&E consultant for a very small extension will not be very popular. Damned if you do and damned if you do not! Certifying the lot will be, as has been said “a highly dangerous undertaking”.

Does the Minister really want to discuss the liability issue? The State will not take the hit under current legislation but somebody will – just be sure it is not YOU!

Michael Quirke, Chartered Architectural Technologist MCIAT

Other posts of interest:

RIAI + Architectural Technologists | Malachy Mathews

The future for Architectural Technologists is outside the RIAI | Joe Byrne

Have residential Completion Certificates been fully considered?

Completion Certificates for Multi-unit Housing

CIAT Architectural Technologists Register goes live today!

Architectural Technologists: Are you on the right bus?

Dáil: CIAT & RIAI- 2 Architectural Technologist Registers

UPDATE- CIAT Register for Architectural Technologists in Ireland

Architectural Technologists and BC(A)R SI.9: CIAT

Phil Hogan | SI.9…”will only apply to works involving the addition of an extension which is greater than 40 sq.m.”

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Former Minister Phil Hogan: SI.9 …”will only apply to works involving the addition of an extension which is greater than 40 sq.m. “

Our research team have dug up a few early quotations on the 40 sq.m. provision in BC(A)R SI.9 from former Minister for the Environment, Phil Hogan. Contrary to more recent confusion on the subject, Hogan was quite clear that the 40 sq.m. exemption from the provisions of SI.9 was for a single extension over 40 sq.m. (430.4 sq.ft.). Perhaps the stakeholders and Department officials who have been struggling with this issue for almost two months should give the Agriculture Commissioner in Brussels a call to see if he can clarify matters for them. Emphasis in bold by BRegs Blog.

First up in April 2014 (see link: Building Control 10 Apr 2014: Seanad debates)

“In respect of self-certification, people involved in self building have been consulted all along. The organisation that allegedly represents them certainly did not make any particularly strong submission to suggest that these regulations should not be introduced in the interests of the consumer. I would have thought that whoever is building a house, which is the largest investment in a person’s life, will want the highest level of professionalism in order to sign off on these matters. Direct labour will continue the way it always have. A person does not need a registered contractor. Contrary to what Senators might have been told, it just applies to new builds and does not apply to extensions under 400 square feet or refurbishment.”

Previously in October 2013 (see link: Building Regulations Compliance: 6 Nov 2013)

“In the case of an existing home, the Building Control (Amendment) Regulations 2013 will only apply to works involving the addition of an extension which is greater than 40 square metres, or to works to an apartment which would require an application for a Fire Safety Certificate. nor works or works of a repair and maintenance nature do not come within the scope of these regulations.”

Other posts of interest:

± 40 sq.m. | “Exemption should avoid controls on minor development”

‘Onerous’ Building Regulations must be amended – Minister Kelly

When is an extension not extensions? | The 40M2 question…

40 SqM SI.9 exemption update | 18 November 2014

Top 10 for week ending December 7th 2014

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Top 10 for week ending December 7th 2014

  • The continued exclusion of Architectural Technologists from the register of professionals under BC(A)R SI.9 was a very popular topic, with 2 opinion pieces from former Architectural Technologist members of the representative body for architects (RIAI) occupying the top 3 positions.
  • Also of interest was Minister Kelly’s Dáil statement where he expressed concern at the level of some of the professional charges for SI.9 Certifier roles.
  • Mark Stephens posted a thought provoking 10-point plan to fix BC(A)R SI.9 problems. We would be interested in hearing other solutions form readers.
  • Continuing professional insurance problems and unintended consequences for those contemplating the new certifier roles were discussed in our PII alert.
  • Issues surrounding the evolving completion under SI.9 were discussed- the Building Control Management System noted they would not be requiring ancillary certificates on completion, adding to concerns that Assigned and Design Certifiers have become singularly responsible under the new regulations.
  • Completion certificate compliactions for multi-unit residential projects were highlighted also.
  • An opinion piece by Vivian Cummins posed the question “who is accountable for having  produced this legislation with its many faults?”
  • The big news was the statement by Minister Alan Kelly that he intended to amend the regulations with respect to once-off housing and extensions.

Enjoy!

  1. The future for Architectural Technologists is outside the RIAI | Joe Byrne
  2. Dáil | Minister Kelly may take steps to control SI.9 ‘exorbitant charges’
  3. RIAI + Architectural Technologists | Malachy Mathews
  4. Ten Point Plan for Building Control Regulations | Mark Stephens MRIAI
  5. SI.9 and PII Alert | Practice makes perfect or does it?
  6. BCMS Completion Stage | No Ancillary Certificates required!
  7. Completion Certificates for Multi-unit Housing
  8. Imminent changes to SI.9 announced | Minister Alan Kelly T.D.
  9. SI.9 | Where’s the accountability?
  10. ‘Onerous’ Building Regulations must be amended – Minister Kelly

Have residential Completion Certificates been fully considered?

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Jenga” by Jorge Barrios

The following opinion piece was sent to us on 3rd December 2014 by Michael O’Neill in relation to the post “Completion Certificates for Multi-unit Housing ” earlier in the week.

Overall Estate Completion Certificates.

Advice issued by the RIAI goes further and tells Assigned Certifiers to lodge another Completion Certificate for the overall development, to close off the Building Register file after multiple phased Completion Certificates have been lodged.”

This quotation from a recent post set me thinking. I am concerned that the legal liability of the person issuing Completion Certificates under the Building Regulations for the overall development of a housing estate or apartment complex may not have been fully considered. I am writing the below comment to hopefully provoke a useful discussion on this subject.

Why would an Assigned Certifier needlessly take on board liability under the Building Regulations by offering an overall Completion Certificate for elements of an estate which may not be covered by the Building Regulations?

Issuing an overall Completion Certificate may be required for an apartment block. I submit that this should be contemplated for an apartment complex only after careful consideration. I submit that this is not appropriate for overall housing developments and should be avoided.

I will qualify this by suggesting that the “overall” Apartment Block Completion Certificate should be limited to those areas of an Apartment Block or Complex which are directly covered by a Statutory Approval or Approvals which arise from the requirements of the Building Regulations. At the moment this means a Fire Safety Certificate or a Disability Access Certificate.

Matters which are not covered by these Statutory Approvals should be excluded from any “overall development” Certificate of Completion issued under the Building Regulation. All other areas should be covered either by an Opinion of Compliance with Planning Permission or an Opinion on Exemption from Planning Permission.

Why?

Building Regulations and Planning Permission are two related bodies of law, but as the recent 40 sq m House Extension debate has shown, they are not directly related. Planing permission tells us what we can build. The Building Regulations tells us how we can build certain things. A planning permission for a large estate of houses or apartments will encompass many more things than those covered by the Building Regulations.

Within the context of the Building Regulations there are many differences between multiple housing developments (the new term for housing estates) and apartment developments.

  • Houses do not need Fire Safety Certificates, Apartments and Duplexes do.
  • Houses do not need Disability Access Certificates, Apartments and Duplexes do.
  • Houses do not depend on other houses Completion for safe egress in a fire emergency. Apartments and Duplexes, which may abut common areas, whose boundaries may be formed by other apartments, and who may share corridor and stairs escape routes, do.
  • Houses are all effectively discrete units which populate a “housing estate”, Some are actually detached, some are separated from others vertically by separating walls known as party walls.

Apartments are generally built as part of an integrated building unit called an apartment block, sometimes itself part of a larger complex of buildings. They are separated both vertically and horizontally from each other and the common areas and escape routes by compartment walls and floors. They may share not only compartment walls on perhaps two sides but may abut common areas on a third side and may be separated horizontally from other apartments both above and below them. Apartment blocks are usually divided from one another by vertical separating walls and if they are built on the ground will have separate fire safety certificates for each block.

Therefore houses do not depend significantly on other houses’ completion for their own compliance with the Building Regulations. A semi-detached house can be left weathered in the absence of its partner, but I cannot recall seeing this on an Irish housing estate. Semi-detached houses and terraced houses are usually completed to a certain level all at the same time. Exceptions include sewers passing through adjoining sites and fire and soundproofing of party walls, eaves and roofs. In my opinion these points can be adequately covered in the individual house Completion Certificate and no reference may be needed to the wider estate in which the house is situated.

Apartments however do depend on other apartments for their own compliance – in terms of vertical and horizontal services duct completions, fire and sound rating of compartment walls and floors, structural stability and integrity, resistance to disproportionate collapse, etc.

So are there reasons for not issuing a Completion Certificate for the Overall Development of the Housing Estate or Apartment Block complex? Yes I believe there are.

  • Many builders will not complete housing developments properly. The same goes for apartment complexes. Items left incomplete can include but may not be limited to – the roof terraces, public open space paving, car parking, roads, external lighting, footpaths, grassed, planted and landscaped areas as well as the common areas and some of the services including swales and attenuation tanks.
  • Previous customary practice regarding the issuing of Opinions as well as current advice regarding Certificates seems to suggest that Completion Certificates for individual houses may be issued without reference to the Housing Estate as a whole. I seem to recall there was an exclusion term referring to “the estate of which it forms a part”.

I think it would be very unwise to try this approach with apartments. It is very difficult to leave apartment buildings themselves incomplete because of the interdependence of the units and their shared access and egress. Compliance with the Fire Safety Certificate demands that an apartment building as a whole must be compliant. This is because such Fire Safety Certificates are usually obtained for a whole block, and not individual apartments. However, elements, services or systems may be left incomplete or not commissioned.

Let me underline this – under the new regulations, certifying an apartment at any point before the block of which it is a part has achieved compliance with its statutory approvals would seem to be very unwise.

An apartment block is an integrated design. While an individual apartment may be first occupied at a different time than neighbouring apartments, all the apartments, common areas, fire stairs and escape routes fire safety, detection and alarm measures must be complete at that time. The compliance of the other apartments and elements are required to ensure that the block as a whole is in compliance with its Fire Safety Certificate when the first apartment is occupied. Is this requirement always observed? Not in my experience. A Completion Certificate for an Apartment Block may improve matters. However human nature may still intervene, as it used to do on housing estates.

A housing estate is different. Matters outside of the Houses – the completion of a housing estate’s boundary walls, garden walls, landscaping, footpaths, roads, public lighting, civil works and services in general – are ultra vires the Building Regulations. These matters are covered by the Planning and Development Acts and Regulations.

Many Architects’ Opinions have been issued on houses where the services were tested using various standalone methods before being connected to a permanent supply and the estate was not finally paved or garden plot boundary walls fully completed.

Much of this practice developed to assist with a builders cash flow, and much of the external areas services and finishing work was held back to avoid damage by Heavy Vehicles during the ongoing building works until after the completion of civil works.

I am not excusing such practices. I am stating that the instrument of the Architect’s Opinion was usually issued to trigger a purchase and this facilitated the subsequent completion, the sequence of which was logical, for the builder at any rate.

I doubt whether this established sequence of events will be overturned by the issuing of Completion Certificates for each house. The new regulations suggest that the point of will tak place at some point after the issue of a Completion Certificate. This seems the least likely outcome of the new legislation. I think that the unregulated market led by rogue clients builders and developers will decide when the sale will occur – just as it did during the boom years, when houses were bought off the plans without being inspected or certified.

This of course will make a nonsense of the whole point of the Building Regulations and is entirely foreseeable.

Only by making the Rogue Client/Developer/Contractor responsible for the Completion and Compliance of the actual buildings being offered in sale – and ensuring that completion occurs by them PRIOR TO SALE – with independent checks by the Local Authority Building Control Officer during the works – is there a chance that real assurances can be offered to the Consumer in relation to the built work.

So there is an argument for issuing an Overall Completion Certificate for an apartment Block.

There seems to be good reason not to issue such a cert for an Apartment complex as a whole, where the civil and public works are unlikely to be subject to the Building Regulations or the statutory approvals based on them..

But as for issuing a Completion Certificate for an entire Housing Estate? No. That assumes a liability that goes beyond the subject matter of the Building Regulations and into the realm of the infrastructural, civil and public works covered by the Planning Permission.

It is my belief that any Certifier would be most unwise to expose himself to the current liability and penalties under the Building Regulations by including matters in any Completion Certificate which do not fall under the Building Regulations legislation.

Other posts of interest:

Completion Certificates for Multi-unit Housing 

Practical Post 19: Phased completion & BC(A)R SI.9 

BCMS Completion Stage | No Ancillary Certificates required!

BCMS Alert | Last day for Christmas Completion!

ALERT | SI.9 Christmas Completion Countdown

SI.9 causing major delays to school projects

Imminent changes to SI.9 announced | Minister Alan Kelly T.D.

SI.9 completion stage and the BCMS | Clouds are gathering!

5 Tips for Completion Certs

Build in 8 hours, wait 3 weeks for a Completion Cert!

Press: RIAI fearful Local Authorities will start “finding something to invalidate as a method of workload control”

Are Local Authorities ready? Industry concern for completion stage: BC(A)R SI.9 of 2014

Pyrite legal dispute referred to European Court | Independent

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 5th December 2014

A major legal case involving pyrite has been referred to the European Court (link below). The detail of the case is quite complex, however it does illustrate the extent of time (and money) it can take to pursue redress through the courts. Under SI.9 consumers will need ‘deep pockets’.

Professionals will also be reading this carefully as it may well impact on professional insurance cover for Pyrite. Many insurance policies currently exclude pyrite. One of the consequences of the new building regulations is that Assigned Certifiers are now responsible for all materials used on a building site (Part D of the regulations). The Construction Products Regulation 2013 is being used as part of the defense and appeal by Irish Asphalt Ltd. Last week the RIAI issued an advice note to members about possible pyrite problems on building sites due to the incorrect specification of hardcore with the implication of liability being on the specifier and not the supplier.

Pyrite was a problem in many developments in the Ballymun Regeneration and throughout North Dublin & Leinster. What’s clear from two recent cases this year where 25 new houses had to be demolished is that this problem has not been solved.

See article “Pyrite heave case referred to european court of justice” from 2nd December 2014. Extract:

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‘Pyrite heave’ case referred to European Court of Justice

Irish Asphalt Ltd supplied infill at Ballymun youth centre which has undergone a €1.55 million remediation project

James Elliot Construction had sued Irish Asphalt Ltd over the supply of defective infill material for the construction of a youth centre in Ballymun in 2005. The case has been referred to the European Court of Justice (above).

A legal action over the supply of defective infill material for the construction of a Dublin youth centre has been referred to the European Court of Justice for determination of issues including the merchantable quality of goods.

James Elliot Construction had sued Irish Asphalt Ltd which supplied the rock product for use as foundation in the Ballymun Central Youth Facility in 2005.

Within three years, floors and walls began to crack because of the presence of excess pyrite in the infill and the centre had to undergo a €1.55 million remediation project.

James Elliot Construction brought an action for compensation against Irish Asphalt Ltd claiming “pyrite heave” had caused the damage.

The High Court found the material was not fit for purpose or of merchantable quality under sale and supply of goods legislation and had given rise to pyritic heave.

Irish Asphalt Ltd, in an appeal to the Supreme Court, challenged that decision and maintained, notwithstanding findings of fact by the High Court, it was not liable to James Elliot Construction as a matter of domestic and EU law.

It argued an implied term of the contract as to fitness for purpose of the material had not been breached.

Supreme Court findings

Yesterday, a three-judge Supreme Court found, on the domestic law issues raised, the Irish Asphalt Ltd appeal should be dismissed but such an order was subject to any issue of European law which the court was referring to the European Court of Justice.

The Supreme Court said it was setting aside the High Court finding in relation to whether the material was fit for purpose under the Sale of Goods and Supply of Services Act 1980 but it upheld other findings including that there was a breach of the same legislation in terms of merchantability.

It also rejected Irish Asphalt’s contention any liability to James Elliot Construction was limited to the cost of replacement of the infill material.

It also upheld the High Court view that the sulphur content of the infill, which indicates the presence of pyrite and meant the material did not meet the required standard, was supported by the evidence and should not be overturned.

In the Supreme Court decision ordering a referencing of the case to the European Court of Justice, Mr Justice Donal O’Donnell said as a matter of national law James Elliot Construction would be entitled to succeed and Irish Asphalt Ltd’s appeal would fail.

EU law

However, in light of Irish Asphalt Ltd’s contention the High Court conclusions were inconsistent with and precluded by EU law, it had been decided to refer a number of questions on the case to the European Court of Justice for a preliminary ruling or reasoned order.

The questions include whether the interpretation of the national and EU standard in relation to construction products is a matter upon which a preliminary ruling may be sought from the European Court of Justice.

If the answer to that question is yes, the European Court of Justice must then decide whether compliance with that EU standard can only be established when tests on the material were carried out at the time of production and/or supply or breach of the standard can be proven by tests conducted later.

The European Court of Justice is further asked whether a national court is obliged to disapply national law by implying terms as to merchantability and fitness for purpose on grounds that statutory terms create standards which have not been notified in accordance with an EU directive on technical standards (Directive 98/34).

In a statement after the Supreme Court decision, Irish Asphalt Ltd said the reference to the European Court of Justice justified the company’s decision to appeal the case and highlighted the complexity of the legal issues concerning testing and standards.

Irish Asphalt Ltd said it acknowledged the severe difficulties that have been caused to many homeowners but said an expert panel in 2012 concluded the pyrite issue was not foreseen by anyone, including construction and quarry companies.

Terms and conditions

In a separate case involving pyrite yesterday, the Supreme Court dismissed an appeal by Irish Asphalt Ltd against another High Court finding that the terms and conditions of its contract with a construction company were incorporated into the contract between the companies for supply of infill material.

Noreside Construction Ltd, Kilkenny, sued Irish Asphalt Ltd for indemnity against legal actions arising out of the presence of pyrite in material it supplied for Noreside to build 52 houses and 31 senior citizens’ homes for Dublin City Council at Griffith Avenue, Finglas, Dublin.

Other posts of interest:

Donegal Pyrite update 

Dáil update | Pyrite in Mayo 

Irish Mirror | Call for an end to pyrite mess

Was pyrite discovered in concrete blocks in 2013?

Pyrite: the spiraling cost of no Local Authority Inspections

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

Pyrite & SI.9- what happens now?

RTÉ News: Louth housing scheme to be demolished over pyrite

Dáil : Pyrite Remediation Programme: 10th June 2014

Government Reports & Professional Opinion Ignored in S.I.80

The regulations ignore key recommendations of the Pyrite Panel

Clear and auditable trail: consumer protection? BC(A)R SI.9

SI.9 | Where’s the accountability?

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5th December 2014

Vivian Cummins MRIAI is a Co. Kildare based architect in private practice.

Assigned Certifiers have been made fully accountable for implementing SI.9 but who is accountable for having  produced this legislation with its many faults?

It is becoming clearer that Ministers Alan Kelly T.D. and Paudie Coffey T.D. at the Department of the Environment, Heritage and Local Government (DECLG) are fully aware that there are serious problems with the Building Control legislation, SI.9. This is the legislation that they inherited at the Department and there is no question of them being accountable for its shortcomings; their responsibility now is to try and sort it out. However a question arises as to who can they turn to for advice? It is not so clear that the people that brought us the Building Control Regulations’ mess are the ones to get us out of it.

David Hall of the Irish Mortgage Holders Association recently described the DECLG as the “poster boy of bureaucratic” failure. This was during an Irish Times podcast with journalists Tom Lyons and Fiach Kelly, when he was discussing the DECLG’s blockage of a ready to go €100 million ‘mortgage for rent’ scheme that had 100 ready-to-go mortgagees. Hall said that he agreed with the financial institutions who claimed that the DECLG had made the scheme unworkable.

The DECLG is the same Government Department that has responsibility for other major difficulties being encountered at the moment on such issues as Irish Water, Social Housing and Planning. In the latter case it believed it was unaccountable when it conducted its own internal review in June 2012 of planning complaints* about seven Planning Authorities and declared that it could find no evidence of wrongdoing. However a subsequent High Court challenge to these findings found otherwise, quashing the DECLG’s review and the Department was obliged to appoint an independent inspector whose report was due last September but has still not been published.

In terms of accountability it is interesting to compare how similar past difficulties in Government Departments have been dealt with. In the Department of Finance it was only after the Celtic Tiger had bolted that issues seemed to be addressed there. The Banking Inquiry to start on Wednesday week may shine more light on this. Elsewhere, in the Department of Justice, the Secretary General, resigned following the publication of a report on its “closed, secretive, silo-driven culture”. How will matters be resolved at the DECLG?

There seems to be a lot of problems for one Department to sort out and one wonders if it has the necessary resources to deal with the SI.9 problems successfully on top of all the others.

*The author of this post was one of the two people whose complaints prompted the inclusion of the Planning Department of Carlow County Council in the June 2012 Review.

Posts of Interest:

Irish Times Business Podcast: 

Imminent changes to SI.9 announced | Minister Alan Kelly T.D. 

Are small rural practices under threat from SI.9? | Vivian Cummins MRIAI