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The recent building control legislation was introduced following high profile cases in Ireland dealing with building control issues ranging from defective materials, such as pyrite damage, to certification problems, together with complications such as contractor insolvency issues. These cases have highlighted the need for a more robust building control regime in Ireland.

It is intended by the Minister for the Environment, Community and Local Government that this new legislation will be an important element in the pursuit of an improved culture of building control. There are various aspects which will have a direct impact on professionals, such as engineers, architects and relevant members of the professional design team, together with owners, builders and building control authorities.

Backdrop

Current secondary legislation governing building control in the public and private sector in Ireland has been in force since 1998 and applies to new buildings, extensions, material alterations and changes of use of buildings in commercial and residential property

The Building Control (Amendment) Regulations 2013 (the “Regulations”) are to be read in conjunction with existing legislation, and will come into effect from March 1 2014 bringing significant changes to the building control regime in Ireland.

New Features

The Regulations provides for:

1.     New commencement notice requirements

2.     Three new certificates of compliance

3.     New roles for assigned certifiers

4.     New penalties

5.     New forms for appointment (“notices of assignment”) of assigned certifiers

New commencement notice requirements

A new form of commencement notice is to be submitted by the owner to its local building control authority noting project particulars and builder/designer details, together with the following documents:

·         Plans and documentation to show how the proposed works or building complies with the requirements of the Regulations;

·         A certificate of compliance (design);

·         A notice of assignment of an assigned certifier who will inspect and certify the works;

·         A notice of assignment in respect of a builder who will carry out the works;

·         A certificate of compliance signed by the assigned certifier undertaking to carry out their roles in accordance with the requirements of the Regulations; and

·         A certificate of compliance signed by the builder undertaking to carry out their roles in accordance with the requirements of the Regulations.

Sample forms for these mandatory certificates and notices are contained in the Regulations.

Certificates of compliance (design): What’s new?

The Regulations highlight the role of architects, engineers, building surveyors and builders vis-a-vis the certificates of compliance as part of the overall building control regulatory regime.

A certificate of compliance (design) will now need to be completed by a professional designer such as a chartered engineer or a registered architect acknowledging that they have been commissioned by the owner to design, in conjunction with others, the works noted and to certify such design. They are to confirm that they will be competent to carry out the design and to co-ordinate the design of others in compliance with the Regulations.

The Regulations impose a duty of skill and care that the design has been prepared exercising reasonable skill, care and diligence.

Assigned certifiers

An assigned certifier (a professional such as a chartered engineer, building surveyor or registered architect), will be appointed by the owner from a register, using the statutory form of appointment in the Regulations called a notice of assignment of an assigned certifier. The assigned certifier will inspect and certify the works.

The assigned certifier signs the certificate of compliance agreeing to carry out their inspection activities in accordance with the Regulations. They will inspect and certify the building works at key stages during construction and, in practice, the assigned certifier will be monitoring the works.

Certificate of compliance on completion

On completion of the project, the assigned certifier and the builder will each certify on different parts of the certificate of compliance that a finished building complies with the requirements of the Regulations

These mandatory certificates of compliance are intended by the Irish legislature to be “clear, unambiguous statements on statutory forms stating that each of the key parties to a project certifies that the works comply with the building regulations and they accept legal responsibility for their work”. 

Register of building control activities     

Building control authorities will be required to enter on a statutory register of building control activities, details of certificates of compliance on completion and certifier details. 

The certificates of compliance must be included on the register before works or buildings to which these Regulations apply can be opened, occupied or used. 

The documentation will be accessible for inspection at the offices of the building control authority.

Building authority roles

It is intended that building control authorities will concentrate on applying a risk-based approach to inspection and compliance checking, having regard to the information that must now be lodged prior to commencement of building works, along with their evolving experience of industry activity within their functional area.  The Minister for the Environment,Community and Local Government has noted the intention that local authorities are working towards a unified system of building control including electronic administration of these building control documents.

Responsibilities for owners of public and private sector property

Owners should be made aware that they will need to appoint the designer, builder and assigned certifier in accordance with the mandatory regime.

In addition, owners will need to be made aware of their obligation to notify the building control authority of any changes of ownership of the works or of the persons assigned as builder or as assigned certifier and to provide appropriate forms in respect of the new assignees.

Failure to do this, as well as being an offence in itself, could delay or inhibit inclusion of details of the final certificate on the statutory register.

Insurances

Professionals such as chartered engineers and registered architects certifying under the Regulations and owners in respect of their property insurances will need to see that they are adequately covered in light of new obligations under the Regulations. The Minister has recognised the challenges of the new regime and is undertaking a review of construction project related insurance before the Regulations commence.

Stakeholders, including insurers and professional bodies have also raised concerns as to the availability of professional indemnity insurances for the new regime. They have suggested that further consultation will be required to develop and agree these issues. 

Liability

If anyone signs one of the statutory certificates under the Regulations which subsequently prove to be non-compliant, they can be held liable for the consequences.  It is the intention behind the Regulations that greater onus will now be placed on professionals to provide owners/end-users with a more comprehensive service and failure to do so will incur the risk of exposure to liability.

Failure to comply with the Regulations will also lead to fines and/or imprisonment.

Practical issues

Concerns are also raised on practical issues, such as the issue of certification and where one professional is fixed with the responsibility for certifying and the relationship with other design professional team members comes into play.

There will be a Code of Practice providing information on defined standards of inspection and certifying building works in order to foster compliance in the sector. 

Costs

Compliance with the Regulations is likely to potentially increase the cost of completing projects in both the public and private sector (which has been acknowledged by the Irish legislature). More importantly, it is also likely to have implications, including those of a cost nature, in obtaining and maintaining insurance cover once implemented.

Conclusion

The Regulations were published following a period of stakeholder consultation and their increased focus on care and safety in the construction industry and the desire to strengthen the building control system can be seen as a positive.

However, professional industry bodies have indicated concerns that the certification process will impose challenging responsibilities on and potential additional liabilities for designer certifiers. Further development on the professional indemnity insurance implications and bedding down of the new requirements also needs to occur.

It will be interesting to see how these new issues in the building control regime in Ireland will take shape in the public and private sector and how stakeholders ranging from building control authorities to owners, builders and designers will respond to the challenges ahead. 

Cassandra Byrne, Senior Associate (FCIArb, Accredited Mediator) and Jarleth Heneghan, Partner (FRICS, FSCSI, FCIArb, CEDR Accredited Mediator, MCIOB) both of William Fry Projects and Construction Department, Dublin, Ireland.