Updated Irish Building Control Regulations Come Into Effect

The Building Control (Amendment) Regulations 2013 (S.I. No.80 of 2013) were signed into law on 8 March 2013 by Phil Hogan, Irish Minister for the Environment, Community and Local Government.

These Regulations were then revoked and replaced by the Building Control (Amendment Regulations 2014 (the “Regulations”) on 15 January 2014 amid concerns from the industry relating to, amongst other things, the insurability of those providing certificates under the new regime. The Regulations update the Building Control Regulations, 1997 (S.I. No. 496 of 1997), as amended came into effect on 1 March 2014. According to Minister Hogan, one of the primary aims of the Regulations is to provide a “key consumer protection measure” which will “for the first time give home-owners clarity, traceability and accountability at all stages of the building process”

. Building Owners:

The Regulations will impose greater responsibilities on building owners who are ultimately responsible for ensuring compliance with the Regulations. In addition to signing and submitting Commencement Notices and 7 Day Notices prior to commencing works as before, building owners are now under a duty to notify the Building Control Authority (the “Authority”) of their appointment of a competent Builder and competent Assigned Certifier of the works, being a registered architect, engineer or building surveyor. The building owner is to satisfy itself as to the competency of the professionals it appoints to carry out those roles and makes a statement to that effect on the relevant notices of assignment to the Authority.

Commencement:

The Regulations introduce the requirement for Commencement Notices and 7 Day Notices to be accompanied by “such plans, specifications and particulars as are necessary to demonstrate how the proposed works will comply with the requirements of the Second Schedule of the Building Regulations” together with the following notices and certificates:

• Certificate of Compliance (Design);

• Notice of Assignment of Person to Inspect and Certify Works;

• Certificate of Compliance (Undertaking by Assigned Certfier);

• Notice of Assignment of Builder; and

• Certificate of Compliance (Undertaking from Builder).

These notices and certificates will permit the Authority to maintain a record of the parties assigned by the building owner to design the works in question as well as act as Builder and Assigned Certifier of the works.

Under the Certificate of Compliance (Undertaking by Assigned Certifier) the Assigned Certifier undertakes to inspect the works with reasonable skill, care and diligence and prepare an Inspection Plan for the works. Under the Certificate of Compliance (Undertaking from Builder) the Builder undertakes to construct the works in accordance with both the Building Regulations and the plans, calculations, specifications and other documents accompanying the Commencement Notice.

Construction & Inspection:

During construction the Assigned Certifier will inspect the works and co-ordinate the inspection of the works by others and shall implement the Inspection Plan (which must be delivered up to the Authority on completion).

Under the Notice of Assignment of Person to Inspect and Certify Works the building owner states that any information requests by the Authority are to be directed to the Assigned Certifier.

Completion

Upon completion of any works to which the Regulations apply there is now a requirement to submit a Certificate of Compliance on Completion together with a copy of the Inspection Plan implemented by the Assigned Certifier.

These documents must also be accompanied by any plans, specifications and other documents which differ from those previously submitted with the Commencement Notice/7 Day Notice. This certificate is jointly provided by the Builder and the Assigned Certifier.

The Builder certifies that the works have been constructed in accordance with the plans, specifications and other documents originally submitted with the Commencement Notice/7 Day Notice and any further plans, specifications and documents as may have been submitted to the Authority during the course of the works.

The Assigned Certifier certifies, having exercised reasonable skill, care and diligence that the Inspection Plan has been implemented in accordance with the Code of Practice for Inspecting and Certifying Building Works and further, in reliance on the ancillary certificates, that the building or works are in compliance with the Regulations.

Duty of Care of Assigned Certifier

The original wording of the Certificate of Compliance on Completion contained in the 2013 Regulations did not incorporate the ‘reasonable skill, care and diligence’ qualification on the certification being given by the Assigned Certifier. This wording was added to address concerns as to the insurability of persons acting as Assigned Certifier as it was felt that the imposition of absolute liability in certifying that the works was in compliance with the Regulations was too onerous. However, whilst the Assigned Certifier is under a reasonable skill, care and diligence obligation in certifying that the works are in compliance with the Regulations, nevertheless they are still certifying compliance – this is absolute and not an opinion on compliance. The addition of ‘reasonable skill, care and diligence’ does not affect the underlying certification obligation which remains absolute – i.e. the works are either in compliance or not.

Further, the liability of the Assigned Certifier may extend many years into the future after it submits the Certificate of Compliance on Completion. If the Assigned Certifier is negligent in certifying the building or works it can be sued in tort by a party that suffers damage as a result, subject to a limitation period of 6 years.

Building Control Authority’s Role The Authority will now have greater access to information at all stages of any works to which the Regulations will apply. However, the Regulations do not impose any significantly greater obligations on the Authority than before. Ultimately the responsibility for the works will always rest between the building owner, the designers, the Builder and the Assigned Certifier.

The Authority will assess the validity of the submitted Certificate of Compliance on Completion. It should be noted however that this is not a technical assessment, approval or factual evaluation of the documents submitted, simply an assessment of whether the certificate itself is in compliance with the Regulations. Where the Authority accepts the validity of the Certificate of Compliance on Completion it must enter the particulars accompanying the certificate on the relevant register to be maintained under the Regulations and notify the person submitting the certificate that this has been done. Where the Authority rejects the validity of a Certificate of Compliance on Completion it must notify the person who submitted the certificate in writing giving reasons for such rejection and requiring them to submit a revised certificate or furnish any additional information as the Authority may require.

Conclusion

The new procedures set out in the Regulations should have the effect of creating greater transparency for future owners of relevant buildings by virtue of the information register being created and maintained by the Authority. Whilst the Authority will have greater oversight of the building process under the Regulations, it is perhaps disappointing that they remain free of any responsibility for directly controlling the quality of building. This still rests entirely with the building owners and their design and construction teams.

The hope will be that there will be a greater level of accountability from the parties involved in carrying out any works on foot of the written undertakings being provided. In particular, the Assigned Certifier is permanently on record in certifying the building or works as being in compliance with the Regulations although their role and duty of care is arguably no greater than that previously assumed by any architect or engineer overseeing and certifying works.

Whilst the intentions behind the Regulations are to be applauded given Ireland’s track record of poor quality construction, particularly in times of high demand for new builds in the residential sector, some may argue that it may be too little too late at this stage. Given the low level of activity in the construction industry at this moment it may be some time before the effects of the Regulations are actually seen in practice but they must be seen as a step in the right direction towards better quality future building construction in Ireland.

For further info contact: Hugh Cummins, Associate, Philip Lee Solicitors on +353 (0)1 237 3700 or e: hcummins@philiplee.ie