strengthening the building control system … submission re building regulatio… · the riai...

G:/ RIAI SUBMISSION RE BUILDING REGULATIONS : JG/AF/ Wednesday 23rd May 2012

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STRENGTHENING THE BUILDING CONTROL SYSTEM

RIAI SUBMISSION

MAY 2012


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CONTENTS 1. The Royal Institute of the Architects of Ireland (RIAI)

2. Executive Summary

3. Introduction

4. Overview of the Proposal

5. Problems and Concerns

5.1 Certification by Builders 5.2 Registration of Builders 5.3 The Statutory Code of Practice 5.4 The Six Parties 5.5 Professional Indemnity Insurance and Liability 5.6 Consumer Redress 5.7 Approved Inspectors 5.8 Register of Approved Inspectors/Certifiers 5.9 Authority of the Assigned Person 5.10 Liability of Building Control Inspectors 5.11 Oversight and Inspection 5.12 Certification 5.13 The Purpose of Building Regulations

6. Achieving a Better System

Introduction 6.1 Enhanced Consultation and the Code of Practice 6.2 The Code of Practice 6.3 Latent Defects Insurance (LDI) 6.4 The Role of the Builder and Registration 6.5 The Building Owner 6.6 The Role of the Assigned Person 6.7 Completion Certification 6.8 Enhancing consumer Protection and Improving Legal Effect 6.9 Sanctions 6.10 The Role of Local Authorities 6.11 Making the Forms Work

7. The Draft Regulations

7.1 Overview 7.2 Amendments to the Regulations 7.3 Draft Certificates

8. Related Issues

8.1 Comprehensive application of the regulations 8.2 Disability Access Certificates 8.3 As Built Documentation


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8.4 Fire Certificates and Houses 8.5 21 Day Notification Systems

9. Appendices 9.1 Letter from Hayes Solicitors, dated 27 April 2012 on Liability under the proposed

Regulations. 9.2 High Level Observations by Marsh/RIAIs on the Building control (Amendment)

Regulations 2012. 9.3 2012 Consultation on Changes to the Building Regulations in England and Wales

(Department of Communities and Local Government). 9.4 Liability and Insurance Regimes in the Construction Sector:

- National Schemes and Guidelines to Stimulate Innovation and Sustainability - Elios Report dated 30 April 2012.

9.5 CIF and the Irish Home Builders Association Voluntary Code of Practice Competency Assessment for PSCS/Contractors, Health and Safety Authority RIAI Pre-Qualification Questions for Contractors. Department of FinancePre-Qualification Questions for Contractors.

9.6 Strategic Review of the Construction Industry Extracts dealing with:

- Training of skilled construction workers and builders - Registration of builders and sub-contractors and - Measure to ensure enforcement of the Building Regulations


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The Royal Institute of the Architects of Ireland The Royal Institute of the Architects of Ireland (RIAI) is the independent national body for the promotion, regulation and support for architects and architectural technologists in Ireland. The RIAI has over 3,000 members, of which 2,600 are architects on the Statutory Register, 300 architectural technologists and there are 550 architectural practices registered with the Institute. Since its foundation in 1839 the RIAI has provided authoritative advice and information on architecture, urban design, construction and the built environment. The RIAI works with government, the professions, industry, clients and the public to promote the value of quality in architecture; to deliver attractive and sustainable built environments; to enrich our distinctive culture and heritage; to contribute to the competitiveness of our economy and to improve quality of life for the people of Ireland today and for generations to come. The RIAI through a range of services and the Building Control Act 2007 works to ensure consumer protection by the promotion of high standards of education, qualifications and professional competence together with monitored Continuing Professional Development (CPD). Standard building contracts, client/architect agreements and other documentation are published so as to provide a framework for architectural services and building. Under the Building Control Act 2007 the RIAI is designated as the registration body for architects. For the purposes of the Professional Qualifications Directive 2005/36/EC the RIAI is designated as the Competent Authority in the State as respects architects. As the Statutory Registration Body for architects, the RIAI is committed to discharge its obligations for the administration of the Register of Architects. Architects and architectural technologists work to add best value to buildings in the interests of clients and the public . Good design and well chosen materials can reduce not only the initial cost of building but also long term running costs. RIAI provides a wide range of public outreach programmes including publications, an architecture in schools programmes, outreach events at consumer shows and consumer advice. Architecture is promoted through awards, publications, architectural competitions, participation in the Government Policy on Architecture, educational standards and media campaigns. The RIAI is the Member Organisation for Ireland of the Architects Council of Europe (ACE) and the International Union of Architects (UIA), giving the Institute a role at EU level and internationally.


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SECTION TWO

Executive Summary

1. The RIAI welcomes the initiative taken by the Minister and his Department in the first

serious move to strengthen the building control system in 20 years, and fully supports the

introduction of mandatory certification at design and completion stages by registered

professionals, and at completion stage by registered building contractors. However, the

proposed system is, in the present form, unworkable; and will confuse and blur

responsibilities.

2. Although the Minister has referred to “certification by builders” in answers to Parliamentary

Questions, the absence of builders’ certification in the Draft Regulations has further

strengthened the perception, hopefully mistaken, that the intent of the Draft Regulations is

to fix one individual professional with the entire responsibility for building standards, thus

relieving other design professionals, builders, sub-contractors, specialists and suppliers of

their responsibilities under the Building Control Act.

3. The absence of the Code of Practice at this stage of public consultation makes definitive

comment almost impossible, as there is no information available on defined standards of

inspection, commissioning or testing.

4. Although it is recognized that primary legislation would be required, along with intensive

work with insurers and other stakeholders, urgent consideration should be given to the

introduction – in conjunction with the Regulations – of mandatory Latent Defects

Insurance for all buildings. The RIAI considers that, unless there is a robust system

offering redress to victims of failures of Building Regulations, there will be no public ‘buy-in’

to the system, and that there will be less public vigilance to ensure that past failures and

scandals are not repeated.

5. Registration of contractors and sub-contractors was proposed in the 1998 Strategic

Review of the Construction Industry. A voluntary system of registration (as the DECLG

proposes) may have a degree of merit but will not bring about the necessary improvement

in standards.


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6. The present proposals are uninsurable under Professional Indemnity Insurance. The

two underwriters, who together provide Professional Indemnity Insurance for 83% of RIAI

registered practices have confirmed that such cover will not be available for the system

proposed in the Draft Regulations. The RIAI believes the Professional Indemnity Insurance

problem could be resolved by consultation, and by development of appropriate wordings in

the Regulations, without which the key objective of having inspection and certification

oversight by defined professionals will not be achieved and there will be no redress for

consumers.

7. The commitment to e-Government should be strengthened by requiring in the Regulations

the use of an online system (such as bReg) for issue of notices and other documents to

and from Building Control Authorities. This will enable and facilitate Local Authorities to

provide a more effective service in this area by offering a repository for information on the

technical information, specification and testing requirements on which the design is based,

and on actual construction to meet the requirements of the Regulations. It will also help

towards local authority inspections targeted through online risk analysis.

8. More effective deployment of local authority building control resources can be

achieved through measures such as regionalization to ensure a defined level of oversight

and audit. Informed and risk analysis based local authority inspections must be an

integral part of the system, must be done on a defined basis, and must be recorded as a

matter of public information.

9. Certification should be required by all the parties to the project at the design and

construction stages to ensure a clear chain of responsibility and an audit trail. This must

be supported by a defined minimum of inspections to be carried out for different building

types. These tests and inspections should form the basis of the terms of reference for

builders, sub-contractors, engineers and local authority Building Control Inspectors.

10. Architects have no difficulty in certifying/signing off on their work but such certification must

be reliant on responsible certification and testing by others. The involvement of

architects in the design and construction phases is of critical importance in

preventing or minimizing problems.


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SECTION THREE

Introduction

The RIAI welcomes the initiative taken by the Minister to introduce Mandatory Design and

Completion Certificates so as to strengthen the building control system and improve building

standards. Since 2004 the RIAI has been of the view, as set out in the report “Strengthening the

Enforcement of the Building Regulations, that there were limitations to the Opinions on

Compliance system and that Mandatory Certification of Design and Construction should be

introduced.

The proposals in the DECLG’s April 2012 public consultation document present an important

opportunity to make step changes in building standards and consumer protection. However, the

proposals will not achieve these objectives: they offer no certainty that the quality of construction

will be improved, or that consumer protection will cease to be problematic, because the overall

system as proposed is, in many respects, unworkable and in certain areas unrealistic.

Despite significant existing problems, the RIAI believes that there is the potential, if all the

relevant parties work together, for a better solution to be developed and the Minister’s objectives

achieved. To this end the RIAI submission is structured in nine main sections:

1. The Royal Institute of the Architects of Ireland (RIAI)

2. Executive Summary

3. Introduction

4. Overview of the Proposal

5. Problems and Concerns

6. Achieving a Better System

Introduction

7. The Draft Regulations


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8. Related Issues

9. Appendices

Given the range of issues raised it has not been possible to confine the submission only to the

proposed template for submission on the Draft Regulations.


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SECTION FOUR

Overview of the Proposal

The RIAI commends the Minister and the Department for advancing the important issue of

building standards and control. The RIAI welcomes the opportunity for consultation so as to

achieve the best possible result in terms of better building standards and consumer protection.

There is an opportunity for real reform of building standards to the benefit of future generations.

The recognition in the proposals that those who design buildings and who administer building

contracts, including inspection services, are required to be competent is an important step in

improving standards in design and construction. However, the proposed system in its present

form is unworkable and will blur and confuse responsibilities.

The RIAI is concerned that the engagement with the key stakeholders on the Draft Regulations

has not been sufficient when, for example, compared with the consultation processes for the

updates of the technical requirements of the Building Regulations. In this context, it’s important to

point out that questions are being raised almost daily by RIAI members and committees who are

still reviewing the Draft Regulations. We also look forward to an early response to the letter to the

Minister of 14th April from the Association of Consulting Engineers of Ireland (ACEI), Engineers

Ireland (EI), the RIAI and the Society of Chartered Surveyors Ireland (SCSI).

The following represents a summary of the proposals contained in this document RIAI urges the

Department to give them the most serious consideration.

1. Certificates of Compliance by Builders:

A certificate by the builder was promised by the Minister in a written answer to a Dáil

question on 2nd February 2012; the RIAI expected that there would be at least a

completion certificate by the builder to support the completion certificate by the assigned

person. It must be appreciated that it is difficult to comment on the adequacy or otherwise

of the proposed system in the apparent absence of certification by builders. Such an

obvious gap in the system would suggest that a longer period of consultation would be

required. An appropriate form of builders’/sub-contractors’ certification must be included in

the Regulations. In order to develop this process; sample certificates for builders are

included in this submission in Section 7.3.


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2. Registration of Contractors and Sub-Contractors

This was proposed in the 1998 Strategic Review Commission Report published by the

Department. A voluntary system of registration of contractors may have a degree of merit

but will not deal with significant public concern in this area. There are existing templates

and systems which would enable registration to move forward quickly. Examples are given

in Section 9.5 of this submission.

3. Details of a more effective and meaningful oversight by building control authorities

The RIAI has only anecdotal information on the pooled resources, standardised

approaches, common protocols and support and development measures to be relied on to

achieve this oversight, all of which we support in principle, but for which a consistent

national system is not yet clarified in the consultations to date. Industry confidence has

been undermined by the claim that an average of 24% of all buildings are being inspected:

this statistic does not reflect, in any way industry experience.

4. Proposals on insurance and redress of victims of any failure under the updated

building control system

RIAI insurers have advised, having had sight of the Statutory Instrument, that key elements

of the draft certificates of compliance are uninsurable and unworkable. Discussions will be

needed to resolve this issue. It has to be realised that the insurable liability of an architect

or engineer or building surveyor is “reasonable skill and care.” The degree of uninsurability

is demonstrated by the reaction of the two insurance underwriters, who between them

provide professional indemnity insurance to over 80% of RIAI registered practices, which is

detailed in Section 5.5 of this submission. Any person or body offering to sign the forms, in

their present form are confirming that:

They are unaware of the responsibilities involved;

They are “men of straw”.

Section of the submission includes initial proposals for certificates that reflect the legal

responsibilities of the architect.


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The absence of a mandatory Defects Liability Insurance for builders is of concern. Project

Insurance and Professional Indemnity Insurance, if only optional for Certifiers, will not

provide sustainable protection to consumers. Working with Marsh, the RIAI in the short

time available has advanced proposals for a viable, cost effective latent defects insurance

system which the Institute considers must be an urgent priority. The hardships experienced

by recent (and especially younger) households – often due to regulatory failures – who

bought houses and apartments, emphasises the need to provide – along with the

Regulations – a system of redress. Convicting those responsible for failures is of limited

benefit unless the victims have a reasonable prospect of defects being remedied. If this

requires primary legislation to deal with the matter, it is difficult to understand why political,

commercial or consumer interests would oppose such legislation and would prefer the

present uninsurable draft proposals to better balanced and comprehensive legislation

offering real protection.

5. Detail in Regulations themselves of e-Government measures

The risk analysis for improved audit, oversight and enforcement depends on e-lodgement

of drawings and technical information. Reliance, initially as proposed, on paper documents

will simply overwhelm the building control authorities with paper and will prevent effective

risk analysis. If applicants are permitted to lodge notices and documents on paper instead

of through an e-lodgement system, improvements will not be achieved in the absence of

additional building control authority staff and will not lead to an improvement in building

standards. If the new system is to work effectively, much more than the DECLG being

“broadly supportive” of e-lodgement is needed.

6. Third Party Certification

We have concerns that the future focus of a register of approved certifiers and inspectors is

unclear. In particular, the Institute has concerns that the Department foresees certification

by professionals who are not suitably qualified in place of those who are – clearly this

would reduce the capacity of the system to uphold better building standards.

It is difficult to understand the intent of the proposed Register of Approved

Inspectors/Certifiers and the need for an agency, with associated costs, for the purposes of

dealing with matters of professional misconduct in the context of the Building Regulations.


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In the 2004 Report, Strengthening the Building Regulations, Engineers Ireland, The Society

of Chartered Surveyors and the RIAI confirmed that “careless, fraudulent or negligent acts

in relation to certification would be matters of professional misconduct.”

The Building Control Act 2007 also provides recourse in the event of poor professional

performance, and gives the Independent Statutory Professional Conduct Committees

considerable powers in this area. Is it the intent of establishing a Registration Body that the

three bodies for the Statutory Regulation of Architects, Building Surveyors and Chartered

Engineers will not be required to deal with complaints arising out of building regulation

certification or related issues?

7. The Statutory Code of Practice, not yet drafted

The Code of Practice – which is not yet drafted – must include details of public sector

measures for inspection, audit and oversight. The RIAI will gladly provide assistance and

input on measures in the Code for private sector input into the regulatory process,

beginning immediately. We are ready to work with your own DECLG team on the Code.

The statutory Code of Practice should include a listing and definition of statutory minimum

inspections and tests, so as to provide a framework against which the statutory Code of

Practice can operate. There needs to be a defined set of inspection/audit/oversight

procedures for Building Control Authorities in the statutory Code of Practice in relation to

the lodgement and completion stages so as to ensure a proper risk analysis approach to

Building Standards.

Section 6.7 of this submission provides a non-exhaustive list of headings for a statutory

Code of Practice and confirms the RIAI interest in and commitment to working with the

stakeholders to achieve this critical element of the system.

8. Mandatory Testing, Inspections and Certification

A statutory minimum number of defined inspections and tests need to be carried out for

different building types. These tests and inspections should form the basis of the terms of

reference, for builders, sub-contractors, architects, engineers and local authority building

inspectors, to be defined in a statutory Code of Practice for quality control in the

construction industry.


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9. Prevention and Responsibility

There are real concerns – given greater weight by the absence of certification by builders

and sub-contractors – that the Draft Regulations appear to focus exclusively on making it

easier to blame architects, engineers and building surveyors and does little to prevent

building failures or to provide realistic redress when such failures happen.

10. Part L of the Building Regulations

The Government has set ambitious targets for energy efficiency and low carbon. Unless

there is an integrated approach to design, construction testing and certification in relation to

part L of the Building Regulations those targets will not be met. In this submission, at

Section 5.12, examples given are of the challenges met by architects in implementing

those challenges. The proposed Regulations need to recognise and address these

challenges.

11. A Culture of Compliance

There is a need for a change of culture in the construction industry so that the key

stakeholders are committed to achieving quality construction; the Regulations need to

reflect and develop this change of culture. The Health and Safety Authority has achieved a

major change in site safety and the Revenue has achieved a major change in tax

compliance. As presently drafted, the Regulations will not achieve this level of change.

In conclusion, despite the concerns listed here, the RIAI believes that constructive engagement

can result in a system that delivers better building standards, consumer protection and, in

particular, a clear chain of responsibility for all relevant parties and an audit trail. We are

committed to working with the Department and the other stakeholders in the industry to achieve

this objective.


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SECTION FIVE

Problems and Concerns

5.1 Certification by Builders

Despite the commitment made by Minister Hogan, in answer to a Parliamentary Question

on 2nd

February 2012, to introduce Mandatory Certification by designers and builders, such

certification by builders is not included in the Draft Regulations. In some presentations

officials have stated that such certification is not required as the builders legal obligations

are covered in the 1990 Building Control Act Document.

Regrettably the absence of certification by builders in the Consultation Material as issued

and in the Regulations serves only to fuel, hopefully unfounded, perceptions that the

intention is to exclude the responsibility of contractor/sub contractors etc in relation to

building works. The RIAI has received an unprecedented number of complaints from

architects who share the perception that they are expected to take on the responsibility for

the Builder which has been removed under the Draft Regulations.

In order to demonstrate what might be required in a Builders Certificate, examples are

included at 7.3 of this submission.

5.2 Registration of Builders

1998 Strategic Review of the Construction Industry made specific proposals for the

registration of skilled workers and contractors including those normally acting as sub-

contractors.

The full text for the review of the section dealing with registration is attached at Appendix

9.5.

Outside the traditional building trades such as blocklayers, bricklayers, plumbers,

electricians etc, it may not be fully recognised that many site operatives are now covered

under the Construction Skills Certification Scheme (CSCS). Some of the activities certified

include tower crane operators, scaffolders, steel fixers, plant operatives, sheeters and

cladders , built up roof felters ,and erectors of sheeting and cladding.


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The key recommendation of the Strategic Review was, at 3.36 which stated that the CSCS

Scheme be continued and developed so as to establish and maintain a register of skilled

workers in the industry.

In relation to registration contractors the following recommendation was made at 3:40:

“An independent body should be established by the construction industry with the

purpose of setting up and administering a registration system for construction

industry contractors. The body should have a board, appointed by the industry, with

a Chief Executive and supporting staff. The functions of the Board should include the

establishment of a registration system, suitably graded to reflect the various types of

contractors, sub-contractors and specialist contractors operating in housing, general

building and civil engineering.”

Registration of contractors and sub-contractors is not unusual. There are for example

useful examples in New Zealand and Victoria in Australia. There are also European

examples. Examples of existing templates and systems in Ireland are given in Section 9.4.

There is a proposal in the ‘Future Focus section of the DECLG Consultation Document,

where it is noted that the CIF has been invited to prepare a paper setting out proposals for

a voluntary register ,in consultation with the Department. Despite any merit this proposal

may have some merit it is distinctly possible that such a voluntary system would perpetuate

the existing division between compliant and conscientious contractors, sub contractors and

suppliers and specialists and a separate group in the industry which is not compliant and

does not intend to be compliant.

5.3 The Statutory Code of Practice

As the Statutory Code of Practice has not been issued it is difficult to see how meaningful

consultation can be achieved. It is also difficult to see how the regulations can be divorced

and separated from the Statutory Code of Practice since the mesures in each of these

documents should influence the other.

Page 11 of the Consultation document states that:


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“The Code of Practice will address the role and responsibilities of the person

assigned to inspect and certify building works, acceptable inspection arrangements,

documentation to be retained by the assigned person. (In addition to the certificates

or particulars to be submitted for Local Authority) – this might include, for example,

examples of certificates received from other persons in respect of work carried out

by them – and the compilation of as built records demonstrating compliance of the

building regulations.”

The use of the term ‘might’ in this context hardly engenders confidence in the stated

objective of achieving a clear chain of responsibility and audit trail.

The Statutory Code of Practice must include details of public sector measures for

inspection and oversight. There should be a listing and definition, of statutory minimum

inspections and tests so as to provide a framework under which the Statutory Code of

Practice can operate. There needs to be a defined set of inspection/audit/oversight

procedures for building control regulation by local authorities set out in the statutory Code

of Practice from the lodgement to completion stages so as to ensure a proper risk analysis

approach to building standards. The RIAI is available to provide assistance and input on

measures in the Code and believes this work should start immediately. A proposal is made

in Section 7 of this Submission for the content of the Code of Practice.

5.4 The Six Parties

Builders

There is no mention whatsoever of the significant role builders play in the construction

process or certification.

Sub Contractors

There is no mention whatsoever of the significant role sub-contractors play in the

construction process or certification.

Suppliers

There is similarly no mention of the role that suppliers play in the standard of materials in

construction works.


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Owners

The only reference to owners in the entire process, despite the statements made in the

Consultation Document about owners being responsible for compliance with Building

Regulations is a signing an assigned person form.

Construction Professionals

The only party specifically mentioned in the Regulations and the attached forms are

professionals with no reference to key players in terms of construction standards and

compliance with the Building Regulations. The apparent exclusion of the parties from

responsibilities will further develop a culture of non-compliance.

5.5 Professional Indemnity Insurance and Liability

As must be widely known the majority of residential developments and apartment buildings

were constructed without any systematic inspection/oversight by architects or other

professionals. This lack of oversight has led to some of the problems we are experiencing

today.

The public consultation proposals for the assigned person system seems to presume that

there would be inspection oversight and certification by architects, engineers and building

surveyors during the course of the work. However, the wording used ie

‘Notwithstanding the responsibilities of other persons, person/persons or firm/firms in

relation to works, I accept responsibility and legal liability for the inspection of all

works as necessary to ensure that they are neither defective, or contravene any

requirement to the Second Schedule of the Building Regulations, as applicable to

the building works concerned ‘

will mean that this key objective cannot be achieved because the above wording goes

considerably beyond the legal liabilities of professionals and is uninsurable.

Architects in common with other professionals, allow for negligence actions, on the basis

that the architect did not exercise reasonable skill, care and diligence. In the Building

Control Act 2007, architects are subject to complaint to the Professional Conduct

Committee. Such complaint, if upheld, can lead to a range of sanctions up to and including


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removal of a person from the Register of Architects. Architects are also liable to criminal

prosecution in certain circumstances.

The Proposed Forms of Certification and Professional Liability

There are concerns related to Professional Liability about two of the proposed forms.

The first is the Undertaking by the person assigned to inspect and certify works and the

second is the Certificate of Compliance on completion.

By signing the undertaking, the architect not only undertakes to carry out inspections but

actually undertakes to certify the works. The undertaking does not envisage a situation

where the architect may not be in a position to certify the works. By signing such an

undertaking on this form the architect is not only agreeing to undertake an inspection but is

agreeing to do whatever is necessary to get to the stage where the works can be certified;

this is clearly impractical and onerous.

Neither document deals with what will be required or, expected, as an architect in terms of

the level or frequency inspections required. This is possibly something that could be dealt

with in the proposed Code of Practice but at the present moment this is not clear.

At present architects certify the completion of the building; this is done usually on the basis

that the architect is relying in particular on the person responsible for the construction of

the building for compliance with the Building Regulations.

Not only do the proposed Undertaking and Certificate not similarly acknowledge that an

architect must rely on others in this way in terms of providing an opinion on certifying

compliance, in fact they state that the architect must certify compliance “notwithstanding

the responsibility of the persons or firms in relation to the works”. It appears that the

architect is specifically and positively excluded from relying on allowing confirmation from

others or on the fact that work on the building has been carried out by others when giving a

certificate.

In addition, the wordings are such as would introduce fitness of purpose which is not an

insurable risk.


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A legal evaluation of the proposed system is attached at Appendix 9.1.

Professional Skill and Care

Another difficulty with the Draft Regulations is that nowhere is there any reference to the

standard test of professional liability which is a “reasonable skill and care. It is instructive to

note that in Section 8 of the Building (Approved Inspections etc) Regulations 2010 in

England, Wales the duties of the Approved Inspector are described as being:

“within the limits of the professional skill and care”

Architects and Certification

There may be a view that architects are, in some way, when they provide the current

Opinions on Compliance or Certificates based on information of others, relieved of

professional liability or responsibility. This is not the case.

In Quinn v Quality Homes Limited (1976/77) ILRM 31 it was pointed out that the architect

could not act merely as a postman, and pass on to the employer the advice of other

consultants without any comment. He had a duty to point out to the employer what his

views were on the advice being offered, even if it were only to say that he was relying

entirely on the consultant’s advice. This was confirmed in almost identical language in the

case of Pozzolanic Lytg v Bryan Hobson Associates (1999) 16(CLD-06-25.

Standard of Skill and Professional Indemnity Insurance

The standard of skill and care for architects, and other professionals, has not been

defined by the profession but by legal decisions over many years. The following is a

summary of some of the leading cases.

It is accepted that the architect’s duty is to use reasonable skill and care in the course of

his employment. This was laid down for professionals generally in a well known medical

case, Bolam v Friern Hospital Management Committee 1957 1 WLR 528, and expanded

on in the case of Chien Keow v Government of Malaysia 1967 1 WLR 813: “Where you


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get a situation which involves the use of some special skill or competence, then the test

as to whether there has been negligence or not is not the test of the man on top of the

Clapham Omnibus, because he has not got this special skill. The test is the standard of

ordinary skilled man exercising and professing to have that special skill; it is well

established law that it is sufficient if he exercises the ordinary skill of an ordinary

competent man exercising that particular art.” A later case, Wimpey Construction UK Ltd v

DV Poole 1948 Lloyd’s rep 499, confirmed the Bolm test and added, very interestingly,

that even if the employer had paid for someone with specially high skills the basic

negligence test did not alter. The Bolam test was approved in Ireland in the case of Ward

v McMaster and others 1989 ILRM 400, which concerned a house valuation. There is,

however, an important exception. What was known as ‘the State of the Art’ defence was

quite widespread in professional negligence actions and meant, in brief, that what was

considered acceptable on a a general scale by a profession would not be held to be

negligent. This was upheld in the case of Flanagan v Griffity 1981 High Court, 25th

January, when the Court held that ‘an architect cannot be liable in negligence for forming

a judgement which conforms with a considered judgement of men prominent in his

profession’. This is still the position in Britain. It was held Freyssinet v Byrne Brothers

1996, 15 CLD 09 03, that a firm of engineers was not negligent if ‘they had acted in

accordance with practice accepted as proper by a reasonable body of like professionals

skilled in that particular role and expertise’. This is not the position in Ireland as a result of

what is now known as the rule in Roche v Peilow 1986 ILRM 189 which was first set out in

O’Donovan v Cork County Council 1967 IR 173’. If there is a common practice which has

inherent defects, which ought to be obvious to any person giving the matter due

consideration, the fact that it is shown to have been widely and generally adopted over a

period of time does not make the practice any less negligent. Negligent of duty does not

cease by repetition to be neglect of duty.

Skill and Care and Fitness for Purpose

The architect’s design must be skilful, but he will not be expected to guarantee that the

result will be reasonably fit for the purpose for which the building is designed. The

distinction may be a fine one but it exists. The law does not imply a warranty that a

professional will achieve a desired result, but it does assume that he/she will use

reasonable care. In Greaves v Baynham Meikle 1975 4 BLR 56 it was said: ‘A surgeon


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does not warrant that he will cure the patient. Nor does the solicitor warrant that he will

win the case”. The concept of ‘Fitness for purpose’ is borrowed from the Sale of Goods

Act 1893, which Act is concerned with ‘products’. The consumer might think that every

building should, as a matter of course, be fit for its particular intended purpose but this in

strict legal sense is a concept demand a higher acceptance of design responsibility for the

building and an assurance against defect in any circumstance. The important point is that

a building is not a product and the same rules should not apply.

If, however, it can be shown that it was the common intention that a building should be fit

for a particular purpose, then the architect would be liable for this higher duty. Obviously a

house must be fit for human habitation and the architect will be responsible for this

(Hancock v BW Brazier (Anerley Ltd) [1966] 1 WLR 1317) but each building must be

judged on the basis of the parties intentions.

Fitness for purpose is not covered by Professional Indemnity Insurance.

Views of Insurers

Chartis

Chartis, through RIAI Insurance Services (RIAIS), provides Professional Indemnity

Insurance for 54% of RIAI registered practices and has given the following view on the

proposed Regulation.

“I would start by saying that we have not undertaken a very detailed analysis as of yet, and we

reserve our position generally until such a time as the exact details of the new Act and

accompanying documentation/ procedures for architects become clear, however our initial view is

there are issues with the extended scope of responsibilities placed on Architects under the proposed

new Act. I believe this may call into question the architects ability to obtain adequate insurance

coverage in the market going forward and it may lead to the withdrawal of some insurers from the

marketplace.”

The new legislation is effectively trying to pin everything on the architect if they supply an opinion

on compliance. That is dangerous as they could be caught for everything especially when you factor

in the Civil liability Act 1963 and the issue of concurrent wrongdoer. The architect is effectively

going to be the insurer for the entire project. CAR policies and other relevant policies for

construction will not be required by other parties!!


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If the architect is going to undertake such works they will have to be retained as the consultant

architect for the site and have a management role and carry out inspections at the various

construction stages, pouring of the concrete at foundation, first floor level, wall plate level, 1st

fix,

2nd

fix and plastering out. Only then can they be confident that what they say is with in their own

knowledge. This I believe goes well beyond the “full” service and/ or periodic inspections that

architects are happy to provide at present.

Effectively the government want a system where the architects certificate of completion, which

exists in the UK, is applicable here, the main difference however, is that each county council in UK

has an operative and pro active building control department who inspect the house at three distinct

stages. Thus in the UK greater comfort exists for architect giving the cert of completion.

There are two final points that spring to mind, the architect seems to be signing up to “full

responsibility and legal liability for the inspection of all works”, which goes well beyond the normal

provision of “reasonable, skill and care” that we are familiar with under the current process. Also

there is no mention of the sum insured under the insurance policy and in affect the architect is

contractually responsible for all for losses that exceed the sum insured under their PII(even if the PII

operates in the first instance!).”

Views of Insurers

- Dual

Dual, through RIAIS, provides professional indemnity insurance to 29% of RIAI registered

practices.

“The solicitor hits it bang on the head in his second paragraph – “potentially uninsurable”.

A number of things:-

The insured is effectively being requested to give a guarantee of the building – which would be

excluded anyway. It is not “in his opinion”, “having reviewed the facts”, “in our reasonable

opinion” - they are being required to “ensure the works are neither defective”. There’s a huge


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difference between using reasonable skill and care (the measure of civil liability in the provision of

professional services) and “ensuring” – which is somewhat more cast iron and with no real defence.

The new certificate, on the basis proposed, is making the architect responsible for the errors and

omissions of all of the others in the feasibility/planning/design/construction process to more or less

warrant that this is a good building. He’s up front for all of the errors and omissions of third parties.

The obvious thing is that the architect and their insurers are being requested to write a more or less

unquantifiable set of people, some of which the architect will not even of heard of, seen or

supervised. For us, it would be near impossible from our end to be able to underwrite such a risk.

Of course, should we decide to commit to writing such a guarantee (for that’s what it is) we would

have rights of subrogation. In theory at least. Not wishing to state the obvious ,but how many firms

have you seen(either professionals or contractors) who have quietly been forced to close down their

businesses in the last 5 years. Not only are we covering a guarantee of persons unknown to us or

our insured, we are covering the credit risk of those unknown parties being men of straw.

Just one more thing – the results for architects in UK, Ireland and throughout a load of Europe are

unacceptably high at present. Introducing these new regulations on the market at the at this

present time could potentially lead to a total absence of market whatsoever. If this came into I

think it would be safe to say that DUAL Ireland would pull out of the Architects PI market.”

Views of Insurers

- Marsh

Marsh though RIAI Insurances provides Professional Indemnity Insurance to 580 RIAI

Registered Practices and has given the following initial view:

“There is a significant element of potential uninsured risk should a person or firm certify property in

the manner outline in the draft Building Control (Amendment) Regulations 2012 .

“The certifier is being asked to provide Professional Indemnity Insurance but this insurance is only

going to cover the Insured for loss arising from a breach of their professional services. It will not

cover a defect:

- where the insured had acted with reasonable skill and care


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- where the defect arose through the negligence of another party .

If the intent is to have a "No fault" scenario for issues relating to building defects then

Professional Indemnity Insurance is not the route as it is based on legal liability having been

established against the architect.

There are additional risks being imposed on the certifier of these properties. These risks have not

been previously insured and Insurance Companies have no underwriting information in order to

calculate premiums likely to be sustainable .

The certificate requires the Insurance undertaking to confirm there is appropriate insurance in

place. We do not believe any Insurer or advisor will accept this obligation .

PII operates on a "claims made basis , which means that the policy in force at the time of the claim

is the appropriate policy to respond . Any such representation as to the adequacy or

appropriateness of a policy becomes worthless if the policy is not renewed as the benefit of all

cover will fall away on cancellation.

The insurance market for PII is limited with currently only 4/6 insurers actively underwriting risks in

the Irish market. The imposition of a standard greater than "reasonable skill and care" will in our

view create a withdrawal of insurers leaving firms with no cover or restricted coverage and thus

exposure to uninsured risk.”

Attached at Appendix 9.2 is an Overview of Marsh concerns relating to the Building Control

(Amendment) Regulations 2012.

Views of Insurers

- XL

XL, is a potential new underwriter providing Profession Indemnity Insurance for a limited

number of architects. RIAIS had hoped XL would provide a useful market alternative. This

response is worrying as it indicates a closing of the market and the potential for rate rises,

assuming any insurers are left, to lead to a distortion of competition.


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“This looks to be quite a serious change and one without any thought of the consequences of Professional Indemnity insurance for architects, as I can see the impact of this legislation making an awful lot of current carriers in the market re-considering their position. As things currently stand some carriers are running books at a loss, and this caused a few to exit the market already, and with this imposed greater onus of responsibility placed on architects, the frequency and severity of claims is likely to be increased and this is likely to force more carriers to exit the market. With this lack of capacity and greater of onus of responsibility placed on architects, the carriers who do remain in the market will then charge such inflated rates, it will be uneconomical for a lot of architects to continue to purchase Professional Indemnity insurance.

I think my view above will probably be echoed by other underwriters in the market.”

5.6 Consumer Redress

As emphasised above the non-availability of Professional Indemnity Insurance risks leaving

the consumer without redress. There is also the wider issue of redress for victims of

failures even in an updated building control system which is envisaged.

Many hardships are being experienced by recent (and especially younger) buyers of

houses and apartments – often due to regulatory failures. This emphasises the need to

provide with the Regulations a system of redress. Convicting those responsible for failures

is of limited benefit unless the victims have a realistic prospect of defects being remedied.

There is a need for mandatory insurance, Latent Defects Insurance and/or HomeBond

Guarantees to provide run off cover for all parties including builders and owners who have

primary duties under the Building Control Act.

The absence of Mandatory Defects Liability Insurance for builders is a serious concern. If

such insurance is simply an option there is no reason to expect that it will be provided in

most insurances.

The RIAI, with its associated company RIAI Insurances is in discussions on the issue

Latent Defects Insurance, and proposals are included in Section 6.3 of this Submission.

5.7 Approved Inspectors

The term “Approved Inspectors” is used in the Future Options’ Section of the public

consultation document and has also been used at various presentations. This indicates

that the term refers to the UK system of Approved Inspectors. But in the ‘Future Options’

text there appears to be limited appreciation of the actual role of approved inspectors in


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England and Wales. Scotland has a separate system.

Attached at 9.3 is the 2012 Consultation Document on the Role of Building Inspectors in

England and Wales. Some of the key points include:

- Approved inspectors will no longer be required to have PI Insurance.

- The requirement is being removed because consumers were confused as were the

Courts in that approved inspectors were being sued and not the builder or designers

responsible for the actual works.

- The consultation document may give the impression that the use of approved

inspectors is widespread in England and Wales. In fact there are 70 persons or

companies providing such services and, in any event, as an alternative to the full

lodgement and approval system available in those jurisdictions.

- The ambiguity of the role of approved inspectors is recognised by proposals to give

the inspectors the power to open up and seek tests, the role that design team leaders

such as architects have in any event.

RIAI has concerns that there is a potential over-reliance on the concept of “approved

inspectors” as a solution when the system in England and Wales is under review and is, in

reality, a minor element in building control.

5.8 Register of Approved Inspectors/Certifiers

RIAI has concerns that the future focus on a register of approved certifiers and inspectors

is unclear. Instead of adding capacity to the building control system through Third Party

Certifiers as said at briefings, we have concerns that the Department foresees certification

by professionals who are not suitably qualified, in place of those who are, so that it would

reduce the capacity of the system to uphold better building standards.


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It is difficult to understand the intent of the proposed Register of approved

Inspectors/Certifiers and the need for an agency, with associated costs, for the purposes of

dealing with matters of professional misconduct in the context of the Building Regulations.

In the 2004 Report “Strengthening the Building Regulations, Engineers Ireland. Engineers

Ireland, Society of Chartered Surveyors and the RIAI confirmed that “careless, fraudulent

or negligent acts in relation to certification would be matters of professional misconduct.

The Building Control Act 2007 also provides recourse in the event of poor professional

performance, and gives the Independent Statutory Professional Conduct Committees

considerable powers in this area. Is it the intent of establishing a Registration Body that the

three bodies for the Statutory Regulation of Architects, Building Surveyors and Chartered

Engineers will not be required to deal with complaints arising out of building regulation

certification or related issues?

5.9 Authority of the Assigned Person

Assuming that the difficulties with the PI Insurance can be resolved, and proposals on this

matter are included in Section 6.11 and 7.3 of this submission, the objective of having

appropriate professional oversight and certification at construction stage could be achieved

leading to an improvement of building standards. However, it is not clear what is the

responsibility and authority of the assigned person. The matters raised here are not

intended to be exhaustive but indicative of the problems that could be envisaged.

If the assigned person is not the leader of the design team, and one of the defined classes

of professionals, then it is difficult to see what authority and what role that person could

have in ensuring compliance with Regulations by others involved in a project. Where there

is a building contract, an assigned person, separate from the design team would not have

the authority to instruct a builder to rectify faults or to carry out tests.

Where the assigned person was not the Employer’s Representative under the Government

Form of Contract then the entire process of risk transfer and Fixed Price would be put at

risk because of the ambiguous of the position of the assigned person.

Proposals are made in Section 6.6 for simplification of the process


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5.10 Local Authority Building Control Inspectors

There is an issue with the liability of local authority building control inspectors in that there

is a concern regarding personal liability for their inspections. The RIAI is strongly of the

view that building control inspections must be part of the system. Any doubts or difficulties

regarding personal liability must be resolved.

5.11 Oversight and Inspection

Commitment to achieving appropriate levels of inspection of buildings is undermined by the

statement in the consultation documents to the effect that the statistics for 2010 show that

all but four building control authorities had met or exceeded the inspection target of 12/15%

of all buildings and that an a general average inspection rates of 24% of all buildings had

been recorded. There is hardly any engineer, architect, building surveyor or other

construction professional or contractor who has seen anything like an average of 24% of

inspections throughout the country in many years. This is not to doubt that the statistics are

such, but the difficulty is that inspections are not defined or recorded in any way. The lack

of any definition taken with the general experience of the industry challenges the reliability

of the published statistical evidence.

Robust and meaningful oversight of building control authorities has to be an integral part of

the system. At this time there is only anecdotal information on pooled resources,

standardised resources, common protocols and support and development measures

proposed by the DECLG to be relied on to achieve this oversight. Such proposals are

supported by the RIAI but no information is available on a consistent national system.

This is dealt with in more detail in Section 6.10 of the submission.

5.12 Certification

The objective of the proposed system is to improve the quality of industry output as a

means of improving standards and consumer protection. This section of the submission

deals with the structure of the construction industry, the disparity between industry parties,

and the hours available for site inspection on an average project.


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Two examples illustrate the difficulties for the assigned person taking legal liability,

notwithstanding the work of others two examples are given:

1. Radon Barriers

2. Part L Compliance

Many more examples could be given.

Context

The Draft Building (Amendment) Regulations 2012 propose that the assigned competent

Person will inspect the works to ensure that the works and the building are neither

defective nor contravene any relevant requirements of the Building Regulations. The

Regulations further propose that notwithstanding the responsibilities of other person/s or

firms/s in relation to the works the assigned person will accept responsibility and legal

liability for the inspection of all works as necessary to ensure that the works are neither

defective nor contravene any relevant requirements of the Second Schedule of the Building

Regulations.

Construction Industry Structure

Resolving qualitative and compliance problems in any industry requires addressing; how

that industry structure determines how design and construction work is undertaken,

and what parties control the decision making process.

Although a building will use many repeat products which themselves have been tested, is a

once off assembly of components/ products/ materials. This is a major difference from

other industries, and has clear qualitative consequences.

Buildings are designed by firms who may not have worked together before and are

constructed by builders and sub-contractors who are mostly procured by lowest cost

tender. The builders then sub-contract virtually all the work to sub-contractors. The criteria

used in the selection of these sub-contractors has a significant effect on the quality of

the final building.


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Even on a medium size projects there can be between 20 and 30 Sub-Contractors. In

addition there may be between four and ten separate Design Team member firms

(depending on the number of specialists).

The sub-market for house building / apartments has the same sub-contracting issues

but generally has a different scope of services for the design team.

Compared to other industries there is relatively little systematic testing. There are few,

if any barriers to entry. Building is also a cyclical industry, so new entrants will seek work

quickly during market uplifts and exit during downturns. Technical training is limited

relative to the cost of the final product and the cost of defect rectification. R & D

expenditure is low relative to other industries. These factors contribute directly to

outcomes for the consumer that can be more problematic the output of other sectors.

If Government seeks to protect the consumer then responsibility by those who construct,

as well as those who design, must be clear and proportionate to their influence on the

quality and compliance of their output. It most other industries this is seen as basic

common sense.

Construction Industry Context 1

It is appreciated that there are small scale contractors and sub-contractors, but for

even medium scale projects there can be large differences in scale between the

Architects / Engineers and the larger Main-Contractors and Sub-contractors.

Currently under the proposed draft Regulations you could have an Architectural or

Engineering practice assuming full responsibility and legal liability for the works of

others with a much larger turnover.

The turnovers could be:

1. Architect €2m (currently 4% of RIAI Practices have a turnover in excess of €1m)

2. Structural Engineer €3m

3. Services Engineer €2m

4. Main Contractor €958m

5. Services Sub-Contractor €535m


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In effect, the architect or engineer with the lowest turnover and/or capital formation is being

required to take the full responsibility for far larger and better funded companies.

Therefore the Architect under the proposed Regulations could be taking responsibility

and legal liability for up to 9 other members of the Design Team, the Main-Contractor

who can be significantly larger in size, and up to 30 Sub-contractors the largest of whom

can also be significantly different in size. Is this the optimum alignment of responsibilities

to ensure that all parties are best motivated to best protect the consumer?

Construction Industry Context 2 Hours on site

Currently under the proposed draft Regulations you would have an Architectural or

Engineering practice assuming full responsibility and legal liability for the works of

others. This study looks at the hours on a project lasting 18 months. The Architects were

on site each week, some times twice a week. It averaged seven hours a week on site.

Some of this time was spent at meetings / resolving specific issues. This approximates to

on average four hours a week to inspect the building work itself.

The numbers building the project varied considerably over the 18 months period from

approximately 40 up to 140 at the peak. Taking a very approximate figure of 80 persons

per week this equates to approximately 3,200 hours a week .These figures are


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conservative (hours worked per week were greater than 40 in the case of many

subcontractors.)

In the time available, we can only describe order of magnitude hours and

not the precise figure consequently we have erred on the conservative side.

The ratio between hours worked and inspection time per week is 4:3200 or 1:800.

(This excludes inspections by the Structural / Civil Engineers and Services Engineers).

On a smaller scale project you might have 8 people working on site (320 work hours a

Week) and one visit a week by the Architect with on average an hour for inspection after

meetings. Ratio is 1:320. If the Architect visits every two weeks it is 1:640

Certification

In this context there are clear limits on the ability of any Architect or Engineer to inspect

all work carried out by others on site particularly when much of it will be concealed. To

certify in this context ,that notwithstanding ,the responsibilities of other person/s or

firms/s in relation to the works you will accept responsibility and legal liability for the

inspection of all works as necessary to ensure that the works are neither defective nor

contravene any relevant requirements of the Second Schedule of the Building Regulations

is seriously problematic. There are very clear limitations to what Architects on current

scope of services and fee levels can reasonably inspect.


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Certification Problems

Site Example 1 Radon Barrier

The Draft Regulations seek certification that the works are neither defective nor contravene any

relevant requirements of the Second Schedule of the Building Regulations. If we examine the

radon barrier on a small project it illustrates some of the problems that can arise across all the

many building elements that together contribute to compliance with the Building Regulations.

The Radon barrier can be specified by manufacturer or performance specification in the

Private sector or by performance specification in the Public sector. The use of Agrément

certificates can be used to describe a system that has been independently tested.

Problems that have occurred on site include;

- The Contractor decides to use a different product (private sector) or a product

with an inferior strength performance.

- The sub-contractor uses a different product (private sector) or a product with an

inferior strength performance for cost reasons.

- The sub-base, which should have sand blinding, has small stones etc which may

penetrate the membrane.

- Whilst using the specified product, the sub-contractor uses tapes or other

associated products from a different manufacturer. This means that the materials

on which the Agrément certificate is provided are not being used.

This is a frequent occurrence.

- The membrane is not securely sealed around penetrations.


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- Membrane joints that are not correctly lapped ( There may be hundreds of linear

metres of such joints.)

- Membrane joints not sealed correctly.

- Internal and external corner details not correctly installed.

- Membrane damaged by reinforcing bars. or by the ends of reinforcing mesh.

- Detail at structural column locations not correct.

- The membrane is not securely lapped with the DPC.

- Building settlement not allowed for in detail.

- The membrane is detailed so that it is likely to be damaged by power-floating

the concrete slab (design & construction issue).

- The radon barrier carried into the cavity on traditional construction is

subsequently damaged before the external wall is raised.

- The radon barrier although correctly installed and inspected is subsequently

damaged by metal rods used to clean mortar from the wall cavity.

- The membrane is correctly laid by the sub-contractor and inspected but

subsequently torn or damaged before the slab is poured.


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- The radon membrane is correctly installed, and inspected, and the slab poured

but it is subsequently discovered that services have not been installed correctly.

The remedial works involve cutting through the slab, inserting the services and

re-pouring the slab. It can be problematic to ensure continuity of the radon

membrane in these circumstances.

It can fairly be argued that many of the above problems could be resolved with a clear

product/ performance checking regime and good site inspection. However it requires

continuous supervision to monitor all this work. This is not the level of service taken for in

most Architects appointments.

The last three examples occurred after an inspection and the parties concerned may not

be motivated to advise the inspecting Architect of what had happened.

How is an Architect to certify that the works are neither defective nor contravene any

relevant requirements of the Second Schedule of the Building Regulations in the context

described and where they are being asked to assume accept responsibility and legal

liability notwithstanding the responsibilities of other person/s or firms/s.

Site Example 2 Part L Compliance

Compliance with Part L of the Building Regulations using traditional forms of construction

on non domestic buildings continues to raise practical compliance problems on site.

Insulation in cavity walls can be poorly installed, not fixed correctly back to the inner leaf,


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and not properly overlapped at corners. This increases the risk of water penetration and

reduces the thermal performance of the building. These are repeat problems on many sites

sites. Note that a significant amount of traditional housing construction is not inspected.

Traditional forms of construction are well known and are generally understood. Despite

this, as evidenced by the photographs, problems repeatedly occur on site with these forms

of construction.

How is an Architect to certify that such works are neither defective nor contravene any

relevant requirements of the Second Schedule of the Building Regulations in the context

described and where they are being asked to assume accept responsibility and legal

liability notwithstanding the responsibilities of other person/s or firms/s .

The position described on non domestic buildings using traditional forms of construction

will get considerably more complex on dwellings where TGD L 2011 is now operative (with

defined transitional arrangements).

The significantly increased levels of conservation of fuel and energy required, and the

methodologies required for their verification are relatively complex for designers. (DEAP

Dwelling Energy Assessment Procedure)

Consequently compliance on site will be relatively complex. The design and construction

responses will require technical solutions that resolve building fabric insulation, the

limitation of thermal bridging, air-tightness, boiler efficiency and building services controls


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and system insulation, and verification of the completed performance levels. They will also

need to integrate a ventilation strategy that complies with Part F of the Building

Regulations, and an escape and spread of flame solution that complies with Part B.

Whole dwelling performance in relation to Primary energy consumption and related CO2

emissions and individual minimum performance levels will have to be achieved.

Problems at a practical level with traditional construction have been described. Such

problems can be observed on many sites. How is the industry structured or trained to

comply with the increased performance standards in TGD L 2011?

With the exception of specialist contractors working on Passive Houses, it is the RIAIS

opinion, that there is currently a large knowledge and skills gap at site level to allow

compliance with TGD L 2011. Whilst thermal imaging and air-tightness testing will be part

of the solution, Architects under the proposed Regulations, are being asked to accept legal

liability for a clear knowledge and skills gap in the industry. This is on domestic work. Is this

the best alignment of responsibilities to protect the consumer?

Conclusion

If we seek to improve the quality of the product for the consumer we need to realistically

deal with the structural problems in the industry. The proposed Regulations clearly identify

a legal route to pursue those providing certificates of compliance after defects have

occurred. Should we not, on behalf of the consumer, seek ways to improve the qualitative

output that will include much greater alignment of responsibility to the consumer by all

parties which is proportionate to their influence on the quality and compliance of their

output.

5.13 The Purpose of Building Regulations

The Building Regulations are purposive and not prescriptive in form, and cannot be

otherwise given the range of circumstances in which they apply. It is therefore frequently a

matter of informed opinion as to whether the purpose of the Regulation is satisfied in order

to achieve compliance in any case, rather than a matter of fact. For this reason only the

standard of competence and due diligence rather than a strict proof can apply. The history,

language and purpose of the Building Regulations themselves make this evident.


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In this context, Section B of the Building Regulations 2010 No 2214 England and Wales is

worth noting.

Parts A to D, F to K, N and P (except for paragraphs G4, H2 and J7) of Schedule 1 shall

not require anything to be done except for the purpose of securing reasonable standards

of health and safety for persons in or about buildings (and any others who may be

affected by buildings, or matters connected to buildings).

It appears that the consultation document and certificates envisage an absolute level of

compliance with the Building Regulations in contrast with the Regulation cited above, which

will make it impossible for the proposed system to operate. Section 6.11 and 7.3 of this

submission proposes a way forward.


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PART SIX

Achieving A Better System

Introduction

For the avoidance of doubt it is important to state that architects, as the lead designer, do

not have a problem in certifying compliance of their design and the works but there are

certain key issues which have to be addressed:

An architect as lead designer can certify and coordinate the process but must rely on

certification, testing, commissioning and information from the other parties to the design

and construction process. The other designers in the construction process should be

required to also certify compliance of their work. Certification must be within the limits of

reasonable skill and care

Building Contracts such as the Private Sector RIAI Contracts, or the Public Sector

Contract, the architect or engineer or the employers representative in Public Contracts rely

on the input of others prior to certifying, for example, payment in respect of the works.

This section of the report is intended to indicate a way forward as to how a better system

could be achieved which would focus on reducing problems at the outset, ensuring

adequate inspection and proper certification together with a clear chain of responsibility

and audit trail.

6.1 Enhanced Consultation and the Code of Practice

Despite the references in the Consultation Document to public consultation it is a view of

the Institute that this consultation has not been adequate. The reference made to the

written proposal from RIAI/ACEI/EI and SCS dates back to 2004. Although a useful

consultative forum was held in Dublin 18 January 2011 this was a general presentation and

it was only until the 14th April that there were actual proposals on which consultation could

take place.


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Although Stakeholders have been met and various presentations made to interest groups

there has not been, for example, any public advertisement in the media seeking input.

While appreciating the need to move forward on this important issue, the time given to

public consultation is inadequate.

The public consultation process could be enhanced by using measures such as facilitated

workshops or colloquiums where all the stakeholders are present and where an actual

project could be evaluated at all the various stages so as to ‘road test’ the system An

opportunity exists, at a time when there is very little construction activity to develop a

proper system that would serve the industry and consumers in the future. In the absence of

adequate consultation and proper stakeholder involvement there is a real possibility that

the system will not deliver any improvement over the present system.

6.2 The Code of Practice

The difficulty in commenting on the public consultation document in the absence in the

Code of Practice has been identified at 5.3 of the submission.

In presentations to stakeholders Department Officials have stated that the involvement of

the industry would be welcomed. The RIAI, recognising the pressures and skill shortages

in the public service, would welcome the opportunity, together with other stakeholders, to

begin work immediately on the drafting of a Code of Practice. The final form of the Code of

Practice would, of course, be a matter for the Department and for subsequent public

consultation.

The following is a list of headings and possible content of the Code of Practice, at this

stage the range of issues which should be covered:

The list is indicative only and non-exhaustive.

1. Contents

2. Introduction

This section should outline the purpose of the Code of Practice and its legislative

context. The intention would be that the Code of Practice is a dynamic document

capable of responding to the regulatory requirements of a constantly developing


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construction sector. Elements of the BCAR which are likely to be subject to change,

such as and Standard Forms, reference to registers, documentation etc, would be

contained in the Code of Practice where they can more readily be changed. It should

be emphasised that the Code of Practice can be used as a standard adjunct to the

Certificates but can be edited to incorporate information relevant to the specific

project being certified.

3. Application

This section should set out the legislative and legal standing of the Code of Practice

and its application in the exercise and establishment of Building Control. It might

state that it is a (not THE) yardstick by which Competence, adequacy of Service,

Compliance, etc can be measured. This section might include reference to the fact

that the Certificate(s) are evidence of compliance, but are not conclusive evidence.

Perhaps a ‘bespoke’ Code of Practice attached to a Certificate may be deemed as

providing more conclusive evidence? I think that the Code of Practice must be used

as an element of the Supporting Documentation for the Certification Process and

can be a bespoke document incorporating details of supporting documentation, tests

and results, sub certification, professional services etc. This would add emphasis to

the Code of Practice document and the Certificates would stipulate that they must be

read in conjunction with the Code of Practice document. This would facilitate the

Issue of a ‘simple form of Certificate of Compliance’ for the non technical consumers,

and would be backed by the Code of Practice which would contain all the supporting

technical and legal details of more interest to the Consumers professional advisors

and to the Building Control authorities. The extent to which the Code of Practice can

be ‘edited’ would have to be structured/controlled/limited.

4. Definition and Interpretation

This section should contain definitions of all words and terms used in the Code of

Practice/BCAR and in the Standard Documents. It should also contain interpretation

of everything from terms to concepts, and/or reference to the appropriate terms or

definitions.


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5. Competence

This section should define competences required for the various actions to be

performed (e.g Design, Construction, Certification etc) under the terms of the

BCA/BCAR.

6. Supporting Documentation

- Commencement

This section should provide indicative specification of the (level of) information to be

illustrated by the supporting documentation provided at the Commencement stage. It

would not attempt specify actual documents.

7. Professional Services – pre Commencement

This section should provide indicative specification of the (level of) professional

services to be provided at the design stage in order to issue a Certificate of

Compliance

8. Certification

– Pre Commencement

This section should set out the certification process and should provide indicative

specification of sub certification required. It would also set out any mandatory sub

certification required.

9. Professional Services

– Post Commencement

This section should provide indicative specification of the (level of) professional

services to be provided at the Construction stage in order to issue a Certificate of

Compliance. Any mandatory minimum levels of service could be contained here but

there are concerns about ‘floors’ becoming ‘ceilings’ where mandatory minimums are

quoted.

10. Certification

– Post Completion

This section should set out the certification process and should provide indicative

specification of sub certification required, tests to be carried out etc. This section


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would also contain much of the detail on tests, inspections certificates etc. This

section should also contain records of the tests sub certificates etc specific to the

project to which the Code of Practice should refer. It would also set out any

mandatory sub certification required.

11. Supporting Documentation

- Completion

This section should provide indicative specification of the (level of) information to be

illustrated by the supporting documentation provided at the Completion stage. It

would not attempt specify actual documents.

12. Compliance with Building Regulations

This section should be extensive and should interpret generally and specifically what

constitutes Compliance and should include description or reference to definitions of

what constitutes good building practice.

13. Building Control Services

This section should set out the building control methods to be employed by the BCA

including;

Risk based analysis of all projects based on Commencement Notice Data.

Inspection of Projects as appropriate to risk identified

Random inspection

Specification of Inspections (desktop and site)

Recording of actions and outcomes.

It is important that all of the stakeholders, including the State are upfront about their

obligations and commitments to Building Control and state them clearly in the Code

of Practice.

14. e-Lodgment

This section should provide guidance on the E-Lodgement process.


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15. Standard Documents

The ‘Second Schedule’ to the BCAR should be relocated to this section.

16. Insurances

This section should be used to details insurance options and perhaps to record

insurance details specific to the project to which the Code of Practice refers.

In the short time available for consultation the RIAI, with Marsh and RIAI Insurances

has made significant progress with major players in the insurance industry in this

Country. The following is the position with regard to Latent Defects Insurance.

6.3 Latent Defects Insurance (LDI)

Following review with Irish insurers Marsh can confirm availability of LDI insurance for

commercial buildings and developer owned apartment blocks.

“The availability of cover for Private Domestic House (PDH) construction currently lies with

Homebond/Premier Guarantee which is geared to providing cover on individual properties in

that sector and includes an appropriate lower excess being carried by the homeowner. The

minimum excess applicable to each claim under an LDI policy for commercial properties

would be €15K/€25K.

Alternate markets/structures are being assessed for a blend of commercial / homeowner

type LDI arrangement to address the issues of a lower deductible. A solution of this nature

may have to incorporate a blend of Homebond and general insurance market capacity. The

limitations of the Homebond cover would need to be addressed to improve its benefits for

the private dwelling market.

Presently the position is that LDI is arranged on a limited basis as Owners rely on the

warranty of the builder to remedy defects. The current position is that many owners have

suffered as construction firms have failed resulting in the benefit of any warranty being

eliminated.


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LDI provides for a twelve year guarantee of cover from practical completion although the

standard obligations of the builder during the normal defects liability period will still reside

with the builder unless they are insolvent when the policy would step in .Premiums are

typically paid for by the Employer or Developer. In addition the utilisation of professional

technical audit to incept cover and reviews during the construction period facilitates an

insight into the construction detail to assess the risk and communication of risk factors to

the builder.

It would be important to assess and establish an appropriate legislative framework in

relation to the concept/definition of “latent defect” as applies in other jurisdictions. A

legislative framework of this nature could then give the lead for the introduction of

appropriate insurance cover to protect building owners.

Presently market premiums for LDI are competitive and based on the increased

volume/spread of risk with a legislative requirement the cost would be expected to reduce

further. The concept of a “no fault” type of cover for repair of major defects which reduces

litigation between the parties has significant merit

The benefits of a national LDI programme would effectively mean that all the parties to the

contract/project would end up with a simpler process to cater for structural defects, without

recourse to the law or their professional indemnity policies. The merits of avoiding

subrogation actions against all the parties is a particular feature of the LDI product we have

developed thus avoiding protracted delays in settlement of claims.

LDI insurance applies for building defects only. It does not substitute for the other risks for

which the architect is responsible eg design which causes slips/trips planning issues or

consequential loss etc. These would fall for consideration under the normal PII cover of the

architect/engineers etc.


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Marsh believe that LDI warrants strong consideration as a solution to the issues in relation

to building defects as it goes well beyond the scope of traditional negligence based

professional indemnity insurance and enhances the solution for all parties linked to builders

warranty claims.”

There are, as can be seen, limitations on what it proposed to be covered at the moment

for example: single houses are excluded, but there is a possibility of the system operating

at two levels with a particular scheme for domestic work.

In order to give a wider picture of the issue attached at 9.4 is a report prepared for the EU

Commission on Liability and Insurance Regimes in the Construction Sector:

National Schemes and Guidelines stimulate innovation and sustainability published in April

2010.

A comment at 2.5 on mandatory insurances should be considered:

“We may highlight a growing tendency to implement 10 years post completion construction

insurance or guarantees.

This finding is contrary to the commonly held perception that such insurances are

exceptional. In fact such schemes are quite common in at least in the oldest EU Member

States.”

It is important to note that the majority of the above schemes address the housing sector.

The 10 years duration is apparently a reasonable compromise between the statutory

protection of the buyer confronted with construction disorders and the constraint of the

insurance market.

It can be said that there are two main ways to implement such schemes; some countries

have chosen to impose a legal obligation, where the others opted for insurance schemes

which are optional in theory but often indispensible in the market practice.”


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Redress and Insurance

5.5 of this Report deals with the problems caused by the wording of certificates in relation

to Professional Indemnity Insurance and the insurability of the process at this time.

It has to be recognised that no matter how much the system is improved, how much

preventative work is carried out and no matter how effective inspection/certification may be

there remains the possibility of building owners and consumers being left without any

redress.

Companies may close, suppliers may go out of business, professionals may have gone out

of business or left the Country and these circumstances there is no redress. The situation

is particularly acute at present because of the many financial failures in the construction

industry that is always likely to occur in the future. The RIAI is strongly of the view that

Project Insurance or more properly Latent Defects Insurance should not be an option but

should be mandatory for all building work.

6.4 The Role of the Builder and Registration

The view of the RIAI remains, as in our first submission to the Department on 12th April

2012 that a voluntary system of registration contractors may have some merit but will not

deal way with the problems in this area and public concerns. It may be that the extent of

certification of skilled operatives as referred to in 1.3 of this submission is not fully realised.

The following is the list of certification registration schemes under the Construction Skills

Certification Scheme:

180 Degree Excavation Operator

360 Degree Excavator Operator

Architectural Dumper Operator

Built up Root Felting

Standard Crane Operator


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Locating Underground Services

Mini Digger Operator

Mobile Tower Scaffold Operator

Mobile Crane Operator

Roof and Wall Cladding

Scaffolding (Advanced)

Scaffolding (Basic)

Self-Erect Tower Crane Operator

Shot Firing

Signing, lighting and grounding on Roads

Site Dumper Operator

Tower Crane Operator

Tractor Dozer Operator

It is difficult to understand/to defend why, with so many skills and trades certified and

properly trained that the person responsible for overall management and delivery would not

have similar certification and training.

A readymade template for the registration of contractors already exists in the pre-

qualification forms for contractors wishing to tender for Public Sector work as published by

the Department of Finance and attached 9.5 together a standard Private Sector Pre-


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Qualification Form used for the evaluation of contractors in terms of the Safety of Health

Records, Management and Performance.

The CIF Heritage Contractors Scheme also provides an example of a regulation system

administered by the CIF with independent oversight by an Admission Board. The voluntary

Home Builders Code of Practice for Apartments, attached at 9.5 is a further useful

example. Reference should also be made to the SEAI contractors registration system

scheme.

It is recognised that the registration of contractors, first proposed in 1998 would require

Primary Legislation but as shown above there is significant precedants and templates

available which could enable the matter to move forward quickly. The RIAI is strongly of the

view that without adequate registration of contractors system failures will continue.

6.5 The Building Owner

The consultation document notes compliance rests first and foremost with the

developer/builders, designer and building owners.

In the proposed system the building owner appears only once when signing the assigned

person appointment form. It is the experience of the RIAI that certain building owners,

clients etc seek to minimise or ignore their responsibility under the building regulations. A

further problem is the frequent change of owners during the construction stage and

completion. Unless these areas are addressed building owners will continue to evade their

responsibilities.

The RIAI proposes that building owners should have responsibility to sign off at completion

stage.

6.6 The Role of the Architect and the Assigned Person

Section 5.9 of the submission deals with the ambiguities in terms of responsibility of the

assigned person and potential contractual difficulties and confusion. It is difficult to see how

these issues can be resolved but there is a simple solution in that the building owner at

commencement stage should be required to appoint one of the three category of persons

listed, who is also going to act as the design team leader or employer representative as the


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professional responsible for inspection and certification during the works and on completion

as are the standards duties of these professionals.

6.7 Completion Certification

As stated in the introduction of this section of the submission architects do not have a

problem in confirming compliance with the Building Regulations in relation to their work and

relying on the work of others. In those areas of the construction industry where good

practice obtains there is already a substantial amount of completion certification testing and

commissioning procedures which are routinely completed and included in the safety file for

the purposes of Safety and Health Legislation and at Practical Completion.

Examples of inspections and certification are given for three building types:

1. House Construction

2. Apartments

3. Non-Domestic


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Schedule of Compliance Certificates for Building Hand Over at Practical Completion:

Designers’ Certificates

Essential Test and Certification Relating to House Construction (Non –Exhaustive).

1. Pre –Construction

Compliance Calculations for Part L 2010

Compliance with Part B of the Building Regulations

Compliance with Fire Safety Requirements in Respect of Escape and

Rescue

2. Commencement Notice

3. Inspections During Construction

Inspection of Foundation Cuttings

Inspection of Insulation beneath Concrete Floor Slab

Inspection of Radon Barrier and Radon Barrier Sump

Inspection of Damp Proof Course and Damp Proof Membrane

Inspection of Drainage Connections

Inspection of Damp Proof Membranes at all Window and Door Openings

Inspection of Timber Joist Hangers/ First Floor Construction

Inspection of Wall Plates at Roof Level

4. On Site Testing During Construction

Air Pressure Test Prior to 1st Fix installation

Air Pressure Test After 1st Fix Installation

5. Certificates at Practical Completion

Certificate for Electrical Installation – RECI Cert

Certificate for Gas Fired Boiler Installation

Certificate for Heat Recovery System

Certificate for Fire Detection System

Certificate for Carbon Monoxide Detection System

Certificate for Drainage, Soil Vent Pipe and Manhole Connections

Certificate for Air Pressure Tests


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Essential Test and Certification Relating to Apartment Construction.

1. Pre –Construction

Compliance Calculations for Part L 2010

Compliance with Part B of the Building Regulations

Compliance with Fire Safety Requirements

2. Commencement Notice

3. Inspections During Construction

Inspection of Foundation Cuttings ( Structural Engineer)

Inspection of Insulation beneath Concrete Floor Slab

Inspection of Radon Barrier and Radon Barrier Sump

Inspection of Damp Proof Course and Damp Proof Membrane

Inspection of Basements and Water Tanking Construction

Inspection of Drainage Connections

Inspection of Damp Proof Membranes at all Window and Door Openings

Inspection of Precast or Reinforced Concrete Floor Construction

Inspection of Internal Partitions – Protected Corridor

Inspection of Wall Plate and Roof Level

4. On Site Testing During Construction

Air Pressure Test Prior to 1st Fix installation

Air Pressure Test After 1st Fix Installation

Testing of Heat Recovery System

5. Certificates at Practical Completion

Certification of Timber Frame Construction

Certification of External Wall Installation

Certification of Rain Screen Installation

Certificate for Electrical Installation – RECI Cert

Certificate for Gas Fired Boiler Installation

Certificate for Heat Recovery System

Certificate for Fire Detection System


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Certificate for Carbon Monoxide Detection System

Certificate for Drainage, Soil Vent Pipe and Manhole Connections

Certification of SUDS

Certificate for Air Pressure Tests

Certification of Mechanical Heating System


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Schedule of Compliance Certificates for Building Hand Over at Practical Completion

for Non- Domestic Buildings (Non-Exhaustive list).

Designers’ Certificates

D 1.0 Architect’s Certificates and Related Documents

D 1.1 Local Authority Grant of Planning Permission/s

D 1.2 Confirmation/s by Local Authority of Compliance with Planning Conditions

D 1.3 Opinion on Compliance with Planning Permission/s

D 1.4 Opinion on Design Compliance with Building Regulations as lodged with bREG

D 2.0 Structural / Civil Engineer Consultant

D 2.1 Ground Investigation Report


D 3.0 Mechanical and Electrical Consultant


D 4.0 Landscape Architect


D 5.0 Fire Safety Consultant

D 5.1 Local Authority Fire Safety Certificate

D 5.2 Fire Consultants Opinion on Substantial Compliance with Fire Safety Certificate

D 5.3 Fire Consultants Opinion on Substantial Compliance with Part B of Building

Regulations

D 5.4 Opinion on Design Compliance with Fire Safety as lodged with bREG

Construction Certificates

C 1.0 Main Building Contractor

C 1.1 Opinion on Construction Compliance with Building Regulations as lodged with

bREG

C 2.0 Hard Core Supplier/s

C 2.1 Testing Certificates in Hard Core – Source and Absence of Deleterious Material.

C 2.2 Confirmation/s of Deliveries and Quantities of Hard Core


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C.3.0 Piling Contractor/s

C 3.1 Certificate for Reinforcement Steel

C 3.2 Dynamic Load Tests

C 3.3 Static Load Test

C.3.4 Concrete Tests

C.3.5 Opinion on Design Compliance with Building Regulations as lodged with bREG

C 4.0 Site Drainage

C 4.1 Sewer Inspection Report

C 4.2 Water Main Test Certificate

C 4.3 Drainage Air tests

C 4.4 CCTV Inspection Report

C 5.0 In –situ Concrete, Precast Concrete

C 5.1 Aggregate Analysis Reports

C 5.2 Concrete Mill Certificates

C 5.3 Pull Out Test Reports

C 5.4 Test Records for Internal Drainage – soils and wastes

C 5.5 Test Records for Internal Drainage – rainwater disposal

C 5.6 Test Records for Rainwater Harvesting Installation

C 6.0 Concrete Piling

C 6.1 Reinforcing Steel

C 6.2 Steel Quality Certificates

C 6.3 Dynamic Load Test

C 6.4 Foundations- Static Load Test

C 7.0 Radon Barrier Contractor

C 7.1 Radon Barrier Opinion on Compliance

C 7.2 Radon Barrier Installation Test Certificate

C 8.0 Air Tightness Specialist

C 8.1 Final Air Tightness Test Report


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C 9.0 Internal Walls and Partitions

C 9.1 Sound Insulation Testing Certificates

C 9.2 Verification Records for Fire-Rated Partition/Floor construction

C 10.0 External Cladding, Windows and Glazing

C 10.1 Windows and Doors – Manufacturer’s Guarantees

C 10.2 Windows and Doors – Inspection, Testing

C 10.3 Glass Manufacturer’s Guarantee

C 10.4 Glazing Load Test Report

C 10.5 Opinion on Compliance - Brick Work

C 10.6 Stone Cladding – Impact Test

C 10.7 Façade Installations and Test records – heavyweight, lightweight or proprietary

Mechanical Contractor and Mechanical Specialists

C 11.1 Heating Installation Commissioning Certificate

C 11.1 Natural and Smoke Ventilation System Contractor/s

C 11.2 Natural and Smoke Ventilation Commissioning Certificate

C 11.3 Test Records for Smoke Exhaust Installation

C 12.0 Gas Installation

C 12.1 Gas Detection Certificate

C 12.2 Gas pipework Test Certificate

C 13.0 Air Conditioning Installation System Contractor/s

C 13.1 Air Conditioning Installation Commissioning Certificate

C 14.0 Transport Installations

C 14.1 Lift Manufacturer’s Commissioning Certificate

C 14.2 Lift Manufacturer’s Warranty

C 14.3 Hoist Manufacturer’s Commissioning Certificate

C 14.4 Hoist Manufacturer’s Warranty

C 14.5 Travelators/Escalators

C 14.6 Goods Hoist/Lift


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C 14.7 Loading Equipment – Dock Levellers and Platform Lifts

Electrical Contractor and Electrical Specialists

C 15.0 Lighting Installation

C 15.1 Distribution Board test Certificate

C 15.2 Electrical Installation Certificates

C 15.3 RECI Certificates and Test records

C 15.4 Test Records for Data Wiring Installation

C 15.5 Test Records for Intruder Alarm Installation

C 15.6 Test Records for Access Control/CCTV Installation

C 15.7 Test Records for BMS Installation

C 15.8 Test Records for Security Wiring Installation

C 15.9 Test Records for Access Control Wiring Installation

C 16.0 Fire Alarm Systems

C 16.1 Fire Alarm Commissioning Certificate

C 16.2 Fire Alarm Voice Evacuation Certificate

C 17.0 Emergency Lighting

C 17.1 Emergency Lighting Commissioning Certificate

C 18.0 Fire Control Contractor and Specialists

C 18.1 Fire Doors and Fire Shutters

C 18.2 Fire Resistant Glass Certificate

C 18.3 Fire Resistance of Door Sets Certificates

C 18.4 Fire rated Screens Certificates

C 19.0 Fire Stopping

C 19.1 Installation Record for Fire Stopping Works

C19.2 Compliance Certificate for Fire Stopping

C 20.0 Roof/s

C 20.1 Flat Roof: Waterproofing Warranty for Flat Roof Finishes

C 20.2 Water-tightness test for Flat Roof Finish (Spark-Test or equal)


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C 20.3 Roof Access Installation: Commissioning Record for Fall Arrest

C 20.4 Installation Record for Roof Access Ladders – fixed or retractable

Persons providing such information and carrying out such testing against defined

standards should be required to be competent. An example of the problems of certification

has been given at 1.7 which illustrates the expertise needed in many of these areas.

These examples are non-exhaustive but illustrate the range of inputs required during and

on completion of a building.

The increasing complexity of construction, as for example Part L of the Building

Regulations, and the level of testing, commissioning and certification required as noted in

this Section of the submission, will need a range of developed skill-sets. At present there is

no certification of those who are involved in testing, except in certain cases such as RECI,

BER or Gas installations. In the context of certification co-ordination by an architect or

assigned person RIAI Architectural Technologists would have the appropriate skills in this

area in relation to testing system.

6.8 Enhancing Consumer Protection and Improving Legal Effect

This section of the submission deals with general measures which would need to be

considered to improve Consumer Protection.

Safeguarding Consumers and Public Health & Safety

In a submission to the Interdepartmental Group on Public Safety in Jan 2000 the Institution

Engineers Ireland (EI) made the point that the Tánaiste, after the publication of the Public

Accounts Committee (PAC) report on tax evasion, had stated that, as a principle, “we need

regulations – kept to a minimum – but we must also ensure they are enforced; if not people

lose respect for them and they fall into disrepute”. EI argued that there is no effective,

enforced building control system in this country and that steps should be taken to ensure

that the design of all buildings is carried out only by competent, registered designers, and

that their construction should be similarly regulated.

Lodgement of Design, Testing and Construction Data in bReg

The 2009 Report “A Proposal for the Development the Building Control System in Ireland”


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proposed that the information provided at the commencement stage should be confirmed

by a Design and Completion Certificate signed by the relevant professionals.

The report proposed that drawings, calculations, specifications etc should be lodged to a

digital resource bank www.breg.ie . This would also allow for the opening up of a file on the

issue of a Commencement Notice and prior to its closing, for lodgement of Certificates of

Compliance and for lodgement of revised information so that the data in the file would

represent, on completion, the built status for which the Certificate of Compliance would be

based.

Mandatory Certification – Supplementary measures for standards and redress

There are a number of measures which could supplement certification so as to improve the

enforcement of Building Regulations as follows:

Legislation: make it illegal to sell or convey a building without the appropriate

Certification.

Lending institutions: could be asked/directed not to release installments of loan funds

until Certificates was lodged with a Local Authority while obviously allowing for stage

payments.

Payment of grants, granting of tax relief etc: from Government funds could be made

conditional on evidence of lodgement of Certificates with a Local Authority.

Occupancy Certificate: The mechanism of a form of occupancy certificate should be

considered. In such system it would be illegal to occupy a new or materially altered

building until the certificate was lodged with the Local Authority. See the parallel in

Section 5(xi), Building Control Act 2007 requiring Disability Access Certs and/or a Fire

Safety Certificate.

6.9 Sanctions

Regardless of the methods are used to secure legal effect, certifiers should be registered

contractors and professionals; and should be subject to appropriate sanctions for

incompetent, negligent or fraudulent Certification. Such certification by a registered

architect could lead to suspension, for a defined period of time, or loss of title, and right to

certify, following a decision of the Statutory Professional Conduct Committee under the

Building Control Act 2007.

http://www.breg.ie/


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6.10 The Role of Local Authorities

The bReg Proposal is intended to significantly improve the efficiency of the existing

inspection and enforcement system with minimal, if any, increase in resources, by

redeployment of existing resources and by facilitating a more defined and focused

approach to the inspection of construction in general on a cost neutral basis. The creation

of links to the information resource www.breg.ie would facilitate a more focused approach

to the inspection of construction works. Inspections would be classified as desk study

inspections and site visit inspections. A risk-analysis based inspection of projects to

establish compliance with Building Regulations could be triggered by the lodgement or

Commencement Notice and/or by other information and procedures available to the

inspectorate.

Risk analysis and desk studies would focus site inspections on projects which these

indicate to be potentially problematic. Random site inspections would still be possible, but

site inspections could be more informed and focused and the outcomes and could be

recorded on the Building Control back of house system. The 2009 report advocated the

creation of a National Building Inspectorate but there is alternatively a potential for larger

local authorities to provide services to smaller local authorities by rationalisation of existing

inspection systems. These regional inspection services would focus on desktop studies,

oversight and random audit rather than a complete inspection regime.

6.11 Making the System Work

Despite the many concerns addressed in this submission and the concerns raised by many

architects, there are solutions available within the context of the 1990 Act which would

address the present situation in a fair and balanced way and provide a proportionate

response to public need. Section 7.3 of this submission proposes amendments to the

Certificates. Key principles include:

Understanding of the purpose of Building Regulations as detailed in Section 5.13 of

this submission

The assigned person to act within the limits of reasonable skill and care

The assigned person to co-ordinate the certification of the parties in the design and

certification process and to record these in the certificate, making each party fixed

with a statutory duty, liable on his undertaking.

http://www.breg.ie/


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Revised certificates based on the above principles are detailed in Section 7.3. At this time,

given the short and inadequate time for consultation, definitive legal and insurance advice

has not been obtained but the RIAI believes the revised forms have the potential to resolve

some of the issues raised in this submission.


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SECTION SEVEN

The Draft Regulations Overview

7.1 The Draft Building Control Amendment Regulations 2012.

This section of the submission is intended to identify areas which the Regulations need to

address or queries which arise. These comments are non-exhaustive.

The first section gives a general overview: the second section makes proposals for

amendments to the Regulations. The Third Section deals with the Forms of Certification

Certification Requirements:

Certificate of Compliance ( Design) in the form set out for that purpose in the Second

Schedule, in accordance with Article 9(b) (ii)

Notice of assigned person to inspect and certify works, in accordance with Article

9(b) (iii)

Certificate of compliance ( undertaking by person assigned), Article 9 (b) (iv)

Certificate of compliance on completion

These requirements show a misunderstanding of the roles of the various parties involved

in the construction process. The role of the contractor in the construction process is

ignored, except that he is mentioned in the Commencement Notice. The following

additional forms are therefore required:

Notice of Appointment of Person to Build and Supervise Works in the form set out for

that purpose in the Second schedule

Certificate of Compliance ( Undertaking by Person appointed to Build the Works),

ditto

Article 9(3) provides for the owner to change the person assigned and to submit a new

Notice of Assigned Person and a new Certificate of compliance (undertaking by person

assigned), which form, 9(3) says, shall “reflect the up-to –date arrangements in this

regard”, also needs to be provided for.

Commencement Notice is covered by Article 9.

This is a new form of Notice, with different and additional requirements from and

additional to, requirements of the current form of Notice. But the changed

requirements are not explicit in the text of Article 9 itself.


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When received the local authority must stamp the Notice and consider whether it

complies with the requirements of Article 9.

If the Notice is compliant the local authority acknowledged in writing

If in their opinion it is not compliant, within 7 days the building owner is informed and

the fee returned. A revised Notice with compliant information can be submitted.

Documents to accompany the Commencement Notice are set out in Article 6.

Does this assumes the building design is at a sufficiently advanced stage to permit

the issue of a Notice to satisfy 9(1) (b)(i) in full? It would be far better to provide

explicitly for supplementary submissions of particulars after the Commencment

Notice.

It is not clear what occurs when the local authority is not satisfied with the adequacy

of the submitted documentation.

It is unclear whether the local authority has the power to seek additional information

as Article 10 only refers to a revised notice, or additional fee

Confirmation of Adequate Insurance Cover.

There is a question on the form as to whether the Builder to hold Project Insurance

cover but there is no mention of Contractors All Risk. The form seems to make

Project Insurance Cover ( and any other cover) optional for the Builder.

By contrast, the form requires the Building designer to give details of Professional

Indemnity Insurance Cover – apparently a single policy for all design disciplines –

and a statement that the Insurer is satisfied that cover is adequate. Neither of these

requirements can realistically be met.

The Contractor’s insurance is thus not mandatory but the Building Designer’s is

mandatory

No account has been take of the fact that there can be more than one Designer,

usually a number of Designers

Certificate of Compliance Design.

To be signed by a single Designer ( no account taken for more than one Designer)

Professional Identify Insurance will not cover “that the proposed design for the works

or building are neither defective not contravene any requirements of the Second

Schedule of the Building regulations” as it cover professional negligence.


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Amendments to “7 Day Notice” Regulation 20A.

Includes all the list accompanying documents listed for the Commencement Notice,

with the exception of the Fire Cert

Notice of the Assignment of Person to Inspect and Certify Works.

Building Owner to appoint person to inspect and certify works

Three possible classes of persons are identified – Registered Architect- Registered

Building Surveyor –Chartered Engineer

If the assigned person leaves during the construction stage, Article 9(3) requires

another to be appointed. But neither ((3) nor the form itself indicates how the

inspection of the first assigned inspector are to be certified. Has not been

considered?

Certificate of Compliance (Undertaking by Person Assigned to Inspect and Certify

Works)

This Certificate is submitted at Commencement Notice confirming acceptance of this

role

Acceptance relates to the Code of Practice, not yet published ( so what are the

duties)

Periodic inspection as distinct from full time supervision ( the responsibility of the

builder and sub-contractors) is the norm in the construction industry

The responsibilities set out for the Assigned person will carry the flowing liabilities;

expressly accepting responsibility and legal liability; for the inspection of all works; as

necessary to ensure; they are neither defective, nor contravene any requirement of

the building Regulations

Certificate of Compliance on Completion Article 20F.

Must be submitted to the local authority, include on the register before the building

can be occupied or opened

No expressed reference to insurance in the context of this certificate

If plans specifications differ from the Commencement Notice lodgement information

up-date information must be submitted

If rejected by local authority, no appeal process is mentioned

If rejected the local authority must inform the building owner, within 3 weeks


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It is unlikely that a single professional will be in apposition to certify what is required

in the certificate

The Register - Article 21.

The local authority hold and maintain the register; the identity of all certifier will be on

the register

Existing Opinions on Compliance.

“substantial compliance” and relies on Confirmations

It is important that it is an “ opinion” which is different from a certification

Reflect the norm in the industry and take into account how buildings are designed

and constructed and identifies which is responsible for what

Certificate of Compliance (Design).

The Designer certifies that design is “ neither defective nor contravenes any

requirements of the Second schedule of the Building Regulations”

There is no longer an “Opinion”

There is no definition of the word “ defective”

There is no cognisance of the limitations imposed by the scope of services under the

designer’s appointment

Certificates of Compliance (undertaking of person assigned to inspect and certify

works).

Requires assigned person to “ accept responsibility and legal liability” ensuring the

building is “neither defective nor contrives the Building Regulations”

There is no limit to the scope of the duty

There is no definition of “ inspection”

The assigned person could be liable for Latent defects

Certificate of Compliance on Completion.

Certifies “ neither defective nor contrives”

No allowance for minor deviations

Refers to the “Code of Practice” which is not yet published

Does not take account of “ Substantial Compliance”


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Implications for the Insurers.

Commencement Notice requires ”the Insurer is … satisfied that the cover provided is

adequate for the risks associated with involvement in this

Development” in respect of the Project Insurance and Professional Indemnity

Insurance

P.I.I. is provided on a claims made basis whereby the relevant cover and may not be

available at the time of the claim

This requirement for P.I.I. cover is contrary to the insurance industry norm and will

be reject by insurers

P.I.I. provide insurance on the basis of “reasonable skill and care”

Conclusion

Duties and liabilities of the builder are ignored

No Code of Practice has been published. No definitions

Considerable liabilities through certification are transferred to the Designer/

Professional at the Commencement Notice stage and the Completion stage

Strict liability without limitation is imposed on those who certify

One professional certifies for all other designer

The insurable “reasonable skill and care” is ignored

The designer and assigned inspector accept responsibility and legal liability”

ensuring the building is “neither defective nor contrives the Building Regulations”

P.I.I. will not cover the certification obligations of the Designer or Assigned person

The draft Building Control Amendments Regulations 2012 are unworkable and

unfairly place the burden, through certification and legal liability on the Designer and

the three nominated assigned professions.


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7.2 Amendments to the Regulations

Making submissions on the Draft Amendment Regulations is made more difficult by the

need to read them in conjunction with the “principal” Building Control Regulations 1997 (

S.I. No. 496 of 1997 ), and with three sets of Amendment Regulations already adopted: the

Building Control (Amendment) Regulations 2000 ( S.I. No. 10 of 2000 ), the Building

Control (Amendment) Regulations 2004 ( S.I. No. 85 of 2004 ), and the Building Control

(Amendment) Regulations 2009 (S.I. No. 351/2009). The DECLG, instead of consolidating

these four separate documents with the new Draft, has made it necessary for each person

or group to prepare their own consolidated draft so as to obtain an overview. This seems

an unnecessary deterrent to dialogue.

Article 4 [Amend Title of Part II:] PART II COMMENCEMENT NOTICES,

CERTIFICATES OF COMPLIANCE AND PROJECT INSURANCE

3A. Insertion of Article 5A of the principal regulations [Note: this is in lieu of Sub-

Article 3(3) of the Draft BCARs 2012 published by the DECLG]

(1) Article 5 of the Principal Regulations is amended by the insertion of the following after

paragraph (4):

(5) “Certificate of Compliance” means a certificate of compliance as described in section

6(2)(a)(i) of the Act of 1990, which is in the form set out in the Second Schedule, and

includes:

(a) Certificates of Compliance (Design),

(b) Certificates of Compliance (Revised or Updated Design),

(c) Certificates of Compliance (undertaking by person assigned to inspect and certify works),

(d) Certificates of Compliance (undertaking by successor to person assigned to inspect and

certify works),

(e) Certificates of Compliance (undertaking by person assigned to build and supervise works),

(f) Certificate of Compliance on Completion (by successor to person assigned to build and

supervise works), and

(g) Certificate of Compliance on Completion (by person assigned to inspect and certify works).

[Chapter 7 gives an indication of the issues to be resolved in design of the above forms of

Certificate. In (6) (8) below, the RIAI aims to indicate the tasks and responsibilities.]

http://www.irishstatutebook.ie/1997/en/si/0496.html




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(6) “Person Assigned to Inspect and Certify Works” (also referred to herein as the “Assigned

Person”) means a person assigned by a building owner who has commissioned building

works or by a building owner who is making a material change of use. The building owner

confirms that the Assigned Person is

named on a register maintained pursuant to Part 3 or Part 5 of the Building Control

Act 2007 or section 7 of the Institution of Civil Engineers of Ireland (Charter

Amendment) Act 1969; and

competent to inspect and certify the works involved in accordance with these

Regulations, and to ensure that the design of the works does not contravene any

relevant requirement of the Building Regulations.

The Assigned Person is the person who:--

(a) submits to the Building Control Authority (or ensures that the building owner submits)

a Certificate of Compliance (Design) and a Certificate of Compliance (Undertaking

by Person Assigned to Inspect and Certify Works);

(b) if not the person who has signed the Certificate of Compliance (Design), has

satisfied himself/herself that the design on which that Certificate is based (as

uploaded by the Building Control Authority on foot of Article 9(1)(b) and/or Article

9A(2)):-- (i) does not contravene any relevant requirement of the Building

Regulations and/or (ii) can be clarified in one or more submissions to the Building

Control Authority of a Revised or Updated Design;

(c) submits, whenever necessary to comply with Building Regulations and/or to

demonstrate compliance, a Revised or Updated Design which shall comprise a

Certificate of Compliance (Revised or Updated Design) and such further particulars

as the Assigned Person or the Authority may consider necessary to demonstrate

compliance of the design and to ensure that the works do not contravene any

relevant requirement of the Building Regulations

(d) submits likewise any similar particulars provided by the Builder, and by other

designers, specialists and sub-contractors whether engaged by the building owner,

by the Builder or other contractor, or by the Assigned Person;

(e) if not the Assigned Person for the building works or material change of use where

those works or change are partially completed (e.g. as part of site development

works or on foot of a piling contract) prior to appointment of the Assigned Person,


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checks any particulars concerning the works already uploaded in accordance with

Article 9(1)(b), and submits to the Authority any further particulars necessary and

available on partial completion of those works, together with particulars of any

relevant circumstances;

(f) if some of the partially completed works are not appropriately certified, submits also

to the Authority a Notice of Uncertified Partially Completed Works, and instructs the

General Building Foreman to allow a period of 14 days before works are altered or

covered up so that the Authority may inspect them [and/or serve an Enforcement

Notice under S.8 of the 1990 Act];

(g) if not the first person to act as Assigned Person for the building works or material

change of use, submits instead of (a) above (or ensures that the building owner

submits) a Certificate of Compliance (undertaking by successor to person assigned

to inspect and certify works);

(h) acts as an interface on behalf of the building owner with the building control authority

and with the General Building Foreman in the course of the works or material

change of use,

(j) submits (or ensures that the building owner submits) a Certificate of Compliance

(undertaking by person assigned to build and supervise works) signed on behalf of

the Builder;

(k) submits (or ensures that the building owner submits) a Certificate of Compliance

(undertaking by successor to person assigned to build and supervise works) in the

event that the Builder ceases to act for any reason, together with the same

certification and particulars as required at (e) and (f) above;

(m) is available at all reasonable times in the event of a request from the Building Control

Authority, owner, General Building Foreman or Builder for any information or

assistance,

(n) inspects the works including tests and documents being coordinated and collated by

the General Building Foreman relating to design, construction and testing, which will

be attached to the Certificate of Compliance on Completion (Person Assigned to

Build and Supervise Works);

(o) submits the Certificate of Compliance on Completion (Person Assigned to Build and

Supervise Works) and the Certificate of Compliance on Completion (Person

Assigned to Inspect and Certify Works);


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(p) if either the building owner or the Assigned Person terminates the appointment of the

Assigned Person, the Assigned Person and the owner shall each give notice to the

Authority and shall provide any necessary explanation of the circumstances;

(q) issues to the Builder and to the General Building Foreman a copy of every design

and of other particulars uploaded by the Building Control Authority on foot of Article

9(1)(b) and/or Article 9A(2) and of every notice issued to or from the Authority in

connection with the works or the change of use;

and the duties under Building Regulations of the General Building Foreman and of

persons engaged by the building owner who are participating, or who are to

participate, in design, works or testing on the owner’s behalf shall include

(i) duties to comply with directions given by the Assigned Person; and

(ii) duties that are framed by reference to determinations made by that person.

(7) “Person Appointed to Build and Supervise Works” (also referred to herein as “the Builder”)

means a person assigned by the building owner to build the works, including works in

connection with a material change of use. The Builder is the person who:--

(a) is a Registered Building Contractor named on a register maintained pursuant to Part

?? of the Building Control Act 2012 and, in the case of a new dwelling, has taken out

a policy of project insurance in respect of the works,

(b) appoints the General Building Foreman, and instructs him or her to exercise and fulfil

the responsibilities which are those of General Building Foreman and those of the

Builder under and by virtue of the Regulations,

(c) provides the necessary resources to facilitate the work of the General Building

Foreman and of all other persons engaged in construction so as to secure

compliance with the Building Regulations and/or Building Control Regulations;

(d) submits to the Building Control Authority (or ascertains that the building owner or the

Assigned Person has submitted) a Certificate of Compliance (Undertaking by Person

Assigned to Build and Supervise Works);

(e) has familiarized himself/herself with the design uploaded by the Building Control

Authority on foot of Article 9(1)(b) and/or Article 9A(2) and with the notices and other

particulars (including Certificates of Compliance) issued to and by the Authority

sufficient to ensure that persons and sub-contractors engaged by him comply with

the design and other particulars;


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(f) continues to familiarise himself/herself with later designs and with later notices and

particulars issued to and by the Authority;

(g) ensures that the works, including any design or testing carried out by persons

engaged by the Builder, or otherwise under the control of the Builder, do not

contravene any relevant requirement of the Building Regulations or Building Control

Regulations;

(h) ensures that any design or other particulars which are provided by persons engaged

by the Builder in relation to the works, and which are relevant to the roles of the

Assigned Person and/or of the General Building Foreman, are supplied promptly to

that person in a form suitable for inclusion in submissions to the Building Control

Authority of a Revised or Updated Design or of a Certificate of Compliance and/or so

as to facilitate any further or remedial work needed to comply with the Building

Regulations or Building Control Regulations;

(j) if not the first Builder engaged on the works, shall take due account of any Notice of

Uncertified Partially Completed Works, by allowing a period of 14 days before those

works are altered or covered up so that the Authority may inspect them; and shall

submit to the Assigned Person a report on any inspection by the Authority including

any particulars disclosed in the course of that inspection;

(k) issues the Certificate of Compliance on Completion (Person Assigned to Build and

Supervise Works) countersigned by the General Building Foreman;

(l) if either the building owner or the Assigned Person terminates the appointment of the

Builder, the Builder shall give notice to the Authority (with a copy notice to each of

the owner, the Assigned Person and the General Building Foreman) and shall

include any necessary explanation of the circumstances;

and the duties under Building Regulations and/or Building Control Regulations of

persons engaged by the building owner who are participating, or who are to

participate, in carrying out the works on the Builder’s behalf shall include

(i) duties to comply with directions given by the Assigned Person and/or by the General

Building Foreman; and

(ii) duties that are framed by reference to determinations made by either of those

persons.

(8) “General Building Foreman” means a person employed by a Registered Contractor or other

person carrying out building works or making a material change of use who:--


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(a) is responsible on behalf of the Builder for co-ordinating, facilitating, testing,

supervising and requiring compliance of construction works with Building

Regulations, Building Control Regulations and the Building Control Acts;

(b) holds the relevant FÁS Construction Skills Certification Scheme Registration Card

certifying a minimum of 3 years documented and assessed site experience in the

Construction Industry as a general building foreman.

(c) receives instructions and notices on behalf of the Builder from the building control

authority and from the Assigned Person, and is available at all reasonable times on

the site in the event of an inspection by that authority or person, and/or in the event

of a request from that authority or person for any information or consultation, for prior

notice of excavation or opening up works, and of any works likely to be covered up

by later work; and for checking and confirming compliance of all parts of the works;

(d) in the course of the works or material change of use, supervises and instructs on

behalf of the Builder all sub-contractors, suppliers, employees and other providers of

goods or services including providers with design responsibility (other than design

specialists engaged directly by the building owner and not working on the site),

(e) collates documents relating to design, construction, testing, operation, use and/or

maintenance of all aspects of the works for forwarding as necessary to the Assigned

Person and/or to accompany a Certificate of Compliance, and including handover

documentation required under the Safety Health and Welfare at Work Acts, the

Multi-Unit Developments Act and/or the Health Acts and/or under Regulations under

these and similar Acts; and

(d) prepares and issues the Certificate of Compliance on Completion (by person

assigned to build and supervise works) countersigned by the Builder;

and the duties under Building Regulations and/or Building Control Regulations of

persons who are participating, or who are to participate, in carrying out any works

shall include complying with directions given by the General Building Foreman

[This is partly based on Ch 6 “Appointed Person” of the UK DCLG “2012

consultation on changes to Building Regulations in England”, Section four, The

building control system.]

(6) “Project Insurance” means a policy of insurance, issued by a Non-Life Insurance

Undertaking holding an authorisation under SI 359/1994, EC (Non-Life Insurance)


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Framework Regulations 1994 or an authorisation from the Minister, which provides a

minimum indemnity as follows:

(a) Cover before completion, from the date of service of the Commencement Notice until

completion of works and registration by the building control authority of the

certificates of final completion, which warrants reimbursement of amounts paid to the

builder and/or extra costs necessary to complete the construction works if, due to

insolvency or fraud, the builder or the owner fails to complete the works and procure

the certificates;

(b) During the period of two years from the date of the certificates of final completion or

from the date of first occupancy of a building or dwelling (whichever is the later),

cover for all defects if the builder or owner fails to meet their obligations in this

regard;

(c) During the period of six years from the date of the certificates of final completion or

from the date of first occupancy of a building or dwelling (whichever is the earlier),

cover for defects in the shell, structure or fire precautions and/or cover for repairs

needed in case of of imminent danger to the health and

(d) physical safety of the occupants if the builder or owner fails to meet their obligations

in this regard;

[Partly based on UK NHBC model described in para 2.2 of ELIOS Final Report

Executive summary “Liability & insurance regimes in the constructions sector” (see

www.elios-ec.eu).]

(7)

(a) “Code of Practice” means a document which the Minister way publish, or arrange to

have published on his behalf, for the purpose of providing guidance with respect to

compliance with the requirements of any of the provisions of the Building Control

Regulations.

(b) Subject to the provisions of paragraph (c), where a person carries out procedures or

deals with matters under the Regulations in accordance with any guidance contained

in a Code of Practice, this shall, prima facie, indicate compliance with the relevant

requirements of these Regulations,

(c) The provisions of any guidance contained in a Code of Practice published under

paragraph (a) shall not be construed as prohibiting compliance with a requirement of

these Regulations by the use of any other suitable method or procedure.

http://www.elios-ec.eu/


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[Mostly based on Article 7 of the 1991 Building Regulations, relating to TGDs. Is this

consistent with other things we are saying about the Code? ]

The RIAI Proposes under “Obligation to give notice”.

[The RIAI proposes the following revision to Article 8, so as to achieve the

efficiencies of an eGovernment and eLodgement system as discussed elsewhere in

the submission; i.e. to free the system from mounds of paper, and to help policing

and enforcement to be based on risk analysis. So if someone wants to make a

paper submission, they should pay the reasonable costs for the building control

authority to upload it into the eLodgement system. This will help to remove the

anomaly whereby most local authorities rely mainly on an electronic system for

records of planning applications, but not for building control. 8(1) below is generally

as existing; 8(2) is the RIAI proposed amendment.]

(8) (1) A person who intends to carry out any works, or to make a material change of use as

regards a building to which this Part applies, shall give, to the building control authority in

whose functional area the works or building are, is or will be situated, notice in writing of

such intention (in these Regulations referred to as a "commencement notice") not less than

fourteen days and not more than twenty-eight days before the commencement of the works

or the making of the material change of use except as provided at paragraph (2).

(2) In the case where the person submits a commencement notice (or any of the

accompanying particulars) to the building control authority otherwise than by email or

other approved electronic means, that notice shall be deemed in these Regulations

to be a "paper pre-commencement notice", and the following provisions shall apply:

(a) the person shall serve the paper pre-commencement notice not less than forty-

two days before the intended commencement of the works or the intended making of

the material change of use,

(b) the building control authority shall estimate the full costs to the authority of

uploading the paper pre-commencement notice (and/or such accompanying

particulars as are not submitted electronically) into its electronic systems,

(c) the building control authority shall, within seven days of receipt of the paper pre-

commencement notice, by notice in writing—


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(I) inform the person giving notice that the paper pre-commencement notice is not a

valid commencement notice and cannot be accepted by the authority as such a

notice,

(II) require the person giving the paper pre-commencement notice to submit the

additional fee, as estimated at paragraph (b),

(III) inform the person that the paper pre-commencement notice and accompanying

particulars (including any particulars submitted electronically) shall be retained by

the authority for a period of four weeks and,

(IV) inform the person that unless the additional fee has been paid within that period of

four weeks, the paper pre-commencement notice and any fee paid shall be returned

to the person, and that any related particulars submitted electronically shall be

deleted,

(d) if the person submits the additional fee estimated at paragraph (b) within the four-

week period specified in paragraph (c), the building control authority shall within

fourteen days of receipt of the additional fee (or such longer period as the person

may agree) upload an electronic file of the paper pre-commencement notice, and

shall begin the procedure at Article 10, and

(e) if the person does not submit the additional fee estimated at paragraph (b) within the

four-week period specified in paragraph (c), the building control authority shall deal

with the particulars and fee in the manner set down in paragraph (c) (IV)..

The RIAI Proposes under “Form of commencement notice”.

[The RIAI proposes that the Article 9 itself should clarify what the Form requires, including

the name and address of the General Building Foreman as defined above at Article 5A.]

9. (1) A commencement notice shall be—

(a) in the form set out in the Second Schedule, and

(b) subject to subparagraph (2), shall be accompanied by –

(i) such plans, calculations, specifications and particulars as are necessary to demonstrate

how the proposed works or building will comply with the requirements of the Second

Schedule of the Building Regulations relevant to the building or works concerned, and

including the following particulars which shall be provided to the building control

authority; and shall be entered in the register unless prohibited by order of the Data

Commissioner or of a court of competent jurisdiction:


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(I) particulars of the location of the building to which the notice relates and the use or

intended use of the building,

(II) a description of the proposed works or material change of use,

(III) the name and address of—

(i) the owner of the building or works to which the notice relates,

(ii) any other person who is to carry out the works to which the notice relates,

(iii) the person giving and signing the notice, and

(iv) the General Building Foreman;

(iv) the name and address of the person or persons from whom such plans, documents

and information, as may be necessary to show that the building or works will comply

with the requirements of the Building Regulations, may be obtained, and

(v) the name and address of and/or of other persons from whom notification of

(i) the pouring of any foundations, or

(ii) the covering up of any drainage system may be obtained, and

(ii) a Certificate of Compliance (Design) in the form set out for that purpose in the

Second Schedule

(iii) a Notice of Assignment of Person to Supervise and Certify Works in the form set

out for that purpose in the Second Schedule

(iv) a Certificate of Compliance (Undertaking by Person assigned to Supervise and

Certify Works) in the form set out for that purpose in the form set out for that purpose

in the Second Schedule, and

(v) a Notice of Appointment of Person to Build and Supervise Works in the form set

out for that purpose in the Second Schedule

(vi) a Certificate of Compliance (Undertaking by Person appointed to Build the

Works) in the form set out for that purpose in the Second Schedule,

(vii) such fee as is required under Part V, or as is required by the building control

authority in accordance with paragraph (d) of Sub article 8(2).

The RIAI proposes deletion of existing Article 9(2). Under the amendment proposed

at 8(2) above, the cost of uploading any paper documents will be recoverable by the

local authority from the applicant, and we are told that the cost to the local authority

of an eLodgement will be Nil. Under Building Regulations Part L 2011, the savings

for an applicant who evades Part L requirements (e.g. in relation to cold bridging


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design and construction provisions) could be considerable. The existing Article 9(2)

makes evasion harder for the building control authority to detect.

(2) If, for whatever reason, a building owner is required to change the person assigned

to supervise and certify the works after a commencement notice has been

submitted, the building owner shall be obliged to notify the the building control

authority of the change by submitting forms as referred to at (1)(b)(iii) and (1)(b)(iv)

reflecting the up-to-date arrangements in this regard.

Obligation to give a revised notice.

9A. An owner or other person who has submitted a commencement notice of intention to

carry out any works in accordance with Article 9(1), and has including relevant

accompanying particulars, or to make a material change of use as regards a building to

which this Part applies, and who makes a material alteration in the design, specification or

other particulars submitted in accordance with Article 9, shall give, to the building control

authority in whose functional area the works or building are, is or will be situated, notice in

writing of such intention (in these Regulations referred to as a “revised Certificate of

Compliance (Design) in the form set out for that purpose in the Second Schedule) not less

than fourteen days and not more than twenty-eight days before the commencement of the

works or the making of the material change of use.

In the case where the person does not submit a commencement notice to the building

control authority by email or by other approved electronic means, the person shall serve

the commencement notice not less than forty-two days before the commencement of the

works or the making of the material change of use, subject to the and the building control

authority shall estimate and issue within seven days to the person who has served the

notice (in these Regulations referred to as a "pre-commencement estimate") specifying the

supplementary fee payable in respect of the cost of uploading upload the notice and

accompanying particulars into its electronic systems, and shall reply by post within fourteen

days to the person who has given notice to specify the supplementary fee payable in

respect of the cost of uploading. In that case, commencement of the works or the making

of the material change of use shall be not less than fourteen days and not more than

twenty-eight days after the date of issue by post building control authority.


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Procedure on receipt of notice

10. (1) On receipt of a commencement notice, a building control authority shall—

(a) stamp the notice with the date of receipt, and

(b) consider whether the notice complies with the requirements of article 9.

(2) Where a building control authority consider that a commencement notice

complies with the requirements of article 9, they shall send to the person

giving the notice an acknowledgement stating the date of receipt of the notice.

(3) Where a building control authority consider that a commencement notice does

not comply with article 9, they may within seven days of receipt of the notice,

as they consider appropriate having regard to the extent of the failure to

comply with the said article, by notice in writing—

(a) inform the person giving the commencement notice that it is invalid and

cannot be accepted by the authority, or

(b) require the person giving the notice to submit such revised notice, or

such additional fee, as may be necessary to comply with the said article.

(4) Where a building control authority serve a notice in accordance with sub-

article 3(a), they shall return to the person giving the notice, the notice and the

fee which accompanied the notice.

(3) Where a building control authority considers that a commencement notice

does comply with article 9, it shall entercontain or be accompanied by—

(a) particulars of the location of the building to which the notice relates and

the use or intended use of the building,

(b) a description of the proposed works or material change of use,

(c) the name and address of—

(i) the owner of the building or works to which the notice relates,

and

(ii) any other person who is to carry out the works to which the

notice relates,

(d) the name and address of the person or persons from whom such plans,

documents and information, as may be necessary to show that the

building or works will comply with the requirements of the Building

Regulations, may be obtained, and


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(e) the name and address of the person or persons from whom notification

of:

(i) the pouring of any foundations, or

(ii) the covering up of any drainage system may be obtained,

and shall be signed by the person giving the notice, or on behalf

of that person.

Offences under Part II.

10A. Failure to comply with any requirement under Part II shall be an offence to which s

Section 17(2) of the Ace of 1990 applies.

[PART III FIRE SAFETY CERTIFICATES—unchanged down as far as Article 20]

PART IIIA — 7 DAY NOTICE, REVISED FIRE SAFETY CERTIFICATE,

REGULARISATION

CERTIFICATE, STATUTORY DECLARATION

AND 7 DAY NOTICE STATUTORY DECLARATION.

7 Day Notice

20A (1) (a) A 7 day notice shall be submitted to a building control authority in respect of:

(i) all works or buildings to which Part III applies, pursuant to Article 11(1) of these

Regulations, and

(ii) where it is proposed to commence work before grant of the relevant fire safety

certificate.

(b) A 7 day notice referred to in paragraph (a) shall be submitted not less than 7 days in

advance of commencement of work.

(2) A 7 day notice shall be—

(a) in the form specified for that purpose in the Second Schedule [2012], and

(b) shall be accompanied by—

(i) a valid application for a fire safety certificate from the applicant in the form specified

for that purpose in the Third Schedule and accompanied by such plans and

particulars as required under paragraphs (a) and (b) of article 13(2),


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(ii) such plans, calculations, specifications and particulars as are necessary to

demonstrate how the proposed works or building will comply with the requirements

of the Second Schedule of the Building Regulations relevant to the building or works

concerned

(iii) a Certificate of Compliance (Design) in the form set out for that purpose in the Third

Schedule [Seems to be a wrong reference: the draft is actually in the Second

Schedule of the 2012 Draft: see 9(1) above]

(iv) a Notice of Assigment of Person to Supervise and Certify Works in the form set out

for that purpose in the Third Schedule [Seems to be a wrong reference; Ditto]

(v) a Certificate of Compliance (Undertaking by Person assigned to Supervise and

Certify Works) in the form set out for that purpose in the Second Schedule, and

(vi) such fee as may from time to time be prescribed for that purpose in Part V.

(3) (a) On receipt of a 7 day notice, a building control authority shall—

(i) consider whether the application is in compliance with the requirements of paragraph

(2), and

(ii) stamp the documents with the date of receipt.

(b) Where a building control authority consider that a 7 day notice complies with the

requirements of paragraph (2), they shall send to the applicant an acknowledgment

stating the date of receipt of the notice.

(c) Where a building control authority consider that a 7 day notice does not comply

with paragraph (2), they may within 7 days of receipt of the notice, as they consider

appropriate having regard to the extent of the failure to comply with the said

paragraph, by notice—

(i) inform the applicant that the 7 day notice is invalid and cannot be accepted by the

authority, or

(ii) require the applicant to furnish such further or amended plans, calculations,

specifications, documents or particulars or such additional fee, as may be necessary

to comply with the said paragraph.

(d) For the purposes of subparagraph (c), a building control authority may give or

send any notice to the applicant by such of the following means as they consider

effective:—

(i) in writing and sent by post or personal delivery;


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(ii) subject to paragraph (e), by telephone, fax, electronic mail or such other means,

whether electronic or otherwise, as may appear appropriate.

(e) Where a building control authority give or send any notice to the applicant in any

form other than in writing, the building control authority shall confirm such notice in

writing to the applicant within fourteen days.

(4) Articles 15 to 20 shall apply mutatis mutandis as if any reference therein to an

application or an application for a fire safety certificate were a reference to an

application for a fire safety certificate which accompanied the submission of a 7 day

notice under paragraph (2)(b).

PART IIIC —CERTIFICATE OF COMPLIANCE ON COMPLETION

20F. (1) A Certificate of Compliance on Completion shall be submitted to a building control

authority and relevant particulars thereof shall be included on the Register

maintained under Part V [It seems the Register is actually Part IV? It was in 1997 in

any case.] before a building or works to which Part II or Part IIIA applies may be

opened, occupied or used.

(2) A Certificate of Compliance on Completion shall be

(a) in the form specified for that purpose in the Fifth Schedule,

(b) shall be accompanied by such plans, calculations, specifications and particulars

as are necessary to demonstrate how the works or building as completed

(i) differs from plans, calculations, specifications and particulars submitted for the

purposes of article 9(b)(i) or Article 20A(2)(b)(ii) as appropriate (to be listed and

included at the Annex 2 [so what is Annex 1??] to the Certificate of Compliance on

Completion), and

(ii) complies with the requirements of the Second Schedule of the Building

Regulations.

(3) On receipt of a Certificate of Compliance on Completion, a building control authority

shall—

(a) stamp the certificate with the date of receipt.

(b) consider whether the certificate complies with the requirements of Article 20F(2)

and

(i) where it is considered that a certificate does comply with the requirements of

Article 20F(2) the building control authority shall enter particulars thereof on the

Register maintained under Part V [Not part IV?] and shall [within three


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weeks??]notify the person who submitted the certificate that particulars have been

included on the register; or

(ii) where it is considered that a certificate does not comply with the requirements of

Article 20F(2) the building control authority may within three weeks of notify the

person who submitted the certificate and

(I) inform them giving reasons that the certificate does not comply with Article 20F(2)

and cannot be accepted by the authority, or

(II) inform them giving reasons that the certificate does not comply with Article

20F(2) and cannot be accepted by the authority,

[Not clear that this can be done by fax, electronic mail or such other means, whether

electronic or otherwise, as may appear appropriate, unlike earlier provisions above,

possible subject likewise to a proviso that Where a building control authority give or

send any notice to the applicant in any form other than in writing, the building control

authority shall confirm such notice in writing to the applicant within fourteen days.]

(5) [Where did (4) disappear to?] A building control authority serving a notice in

accordance with article 20F(3)(b(ii)(I) shall return to the person giving the certificate

the certificate and any documentation that accompanied the certificate.

PART IV THE REGISTER

Register.

21. (1) A building control authority shall keep a register and shall enter in the register

particulars of—

(a) any valid application for a dispensation or relaxation, including the name and

address of the applicant, the date of receipt of the application, and brief details of

the works or building forming the subject of the application,

(b) any valid commencement notice or 7 day notice or certificate of compliance given

to them under Part II, Part IIIA or Part IIIC, as appropriate, including the name

and address of the owner of the building, the date of receipt of the notice, the

person or persons carrying out the works, the person who certified the design,

the person assigned to supervise, and inspect and certify the works during

construction and on completion, and brief particulars of the works or building

forming the subject of the notice,


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(c) any valid application for a fire safety certificate, a revised fire safety certificate, a

regularisation certificate, a disability access certificate, or a revised disability

access certificate made to them under Part III, Part IIIA or Part IIIB, as

appropriate, including the name and address of the applicant, the date of receipt

of the application, and brief particulars of the works or building forming the

subject of the application,

(d) their decision in respect of any application referred to in (c) and the date of the

decision,

(e) any determination or direction by the Board in respect of an appeal relating to a

decision referred to in (a) or (c) and the date of the determination or direction,

(f) any enforcement notices served by them, including the name and address of the

person on whom the notice was served, the date of the notice and brief

particulars of the contents of the notice, and

(g) the date and effect of any decision by the District Court an respect of a notice

referred to in (f), including the date and effect of the decision.

(2) The register shall be kept at the offices of the building control authority and shall be

available for inspection during office hours.

(3) In the interest of clarify; records relating to particulars included on the register may

be accessed in accordance with the Freedom of Information Acts 1997 and 2003

For the avoidance of doubt the register may be maintained electronically subject to

the Data Protection Acts 1998 and 2003.


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7.3 RIAI Proposed Certification by Those Involved

in the Design and Construction Process.

The RIAI proposes a certification system that will encompass all players in the design and

construction process from inception to building completion. The certificates are produced

as examples of the type of certification that will be required to confirm that the building has

been designed and completed in accordance with the relevant requirements of the Second

Schedule of the Building Regulations.

There has been no legal input from lawyers or insurers to the wording of these proposed

certificates.

RIAI 01C – FORM OF CERTIFICATE OF COMPLIANCE (DESIGN)

RIAI 02C – FORM OF CERTIFICATE OF COMPLIANCE (UNDERTAKING BY PERSON

ASSIGNED TO INSPECT AND CERTIFY THE PROJECT)

RIAI O3C CERTIFICATE OF COMPLIANCE

RIAI 03A – FORM OF CERTIFICATE OF COMPLIANCE (REVISED AND UP-DATED DESIGN)

RIAI 04C – FORM OF CERTIFICATE OF COMPLIANCE ON COMPLETION

RIAI 05D – FORM OF CERTIFICATE OF COMPLIANCE (UNDERTAKING BY PERSON

ASSIGNED TO BUILD AND SUPERVISE THE PROJECT)

RIAI 06D – FORM OF CERTIFICATE OF COMPLIANCE ON COMPLETION BY PERSON

ASSIGNED TO BUILD AND SUPERVISE THE PROJECT)


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RIAI 01C FORM OF CERTIFICATE OF COMPLIANCE (DESIGN)

Building Control Authority: OFFICIAL USE

Project Address: Date Received

Planning Register Ref(s). Entered on

Fire Safety Cert. Ref(s): Bldg. Ctrl. Register Cert No.

Disability Access Cert. Ref(s).: Previous Design Cert No.

Owner/Developer: Partly Residential: Yes/No

Commencement Notice No. 7 Day Notice No.

Certifier Registration No. Certifier same as Designer: Yes/No

Builder: Assigned Person: Yes/No

Builder Registration No.: Entered by

1. This certificate has been prepared having regard to the Code of Practice under Article 5(7) of Building Control Regulations 2012, and relates to design of the following building works or change of use (hereafter called ‘the Project’): ________________________________________

__________________________________________________________________________ 2. I certify that the plans, specifications, calculations and other particulars of the Project design (including any relevant Sub-Certificates), which are included in the schedule to the Commencement Notice to which this certificate is attached, have been prepared by me and/or by other members of the design team which I coordinate, to demonstrate and facilitate compliance with the relevant requirements of the Second Schedule of the Building Regulations, and compliance with the terms of any relevant planning permission, Fire Safety Certificate and Disability Access Certificate granted for the Project prior to ________________ [date], and compliance with the terms of any 7 Day notice submitted for the Project, sufficient to ensure reasonable standards of health and safety for persons in or about buildings and any other persons who may be affected by buildings or matters connected to buildings. 3. I certify, having regard to the scheduled plans, specifications, calculations and particulars referred to above, that the proposed design for the Project does not contravene the relevant requirements of the Second Schedule of the Building Regulations. Signature: ____________________ Date: __________________ Tel: _________________________ Fax: ___________________ Email: _______________________ Name of person(s): _______________________ Qualification(s): _______________________ Address:____________________________________________________________________ ____________________________________________________________________ This is a substitute for the “FORM OF CERTIFICATE OF COMPLIANCE (UNDERTAKING BY PERSON ASSIGNEDTO INSPECT AND CERTIFY WORKS” at page 11 of the DECLG Draft


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RIAI 02C FORM OF CERTIFICATE OF COMPLIANCE (UNDERTAKING BY PERSON ASSIGNED

TO INSPECT AND CERTIFY THE PROJECT




Fire Safety Cert Ref(s): Bldg. Ctrl. Register Cert No.

Disability Access Cert. Ref(s): Partly Residential: Yes/No

Owner/Developer: 7 Day Notice No.

Commencement Notice No. Certifier same as Designer: Yes/No

Certifier Registration No. Entered by

Builder:

Builder Registration No.

General Foreman:

Foreman Mbl. Phone no.:

1. This certificate has been prepared having regard to the Code of Practice under Article 5(7) of Building Control Regulations 2012, and relates to the following building works and/ or change of use (hereafter called ‘the Project’): _________________________________________________ 2. I confirm that I have accepted the assignment to inspect and certify the Project outlined in the Commencement Notice to which this certificate is attached, and to fulfil my duties with reasonable skill, care and diligence. I am/I am not [Strike out whichever is inapplicable] the person who signed the “Form of Certificate of Compliance (Design)”. If I am not the person who signed the “Form of Certificate of Compliance (Design)”, I confirm that I have checked that the design on which that Certificate is based (as uploaded by the Building Control Authority on foot of Article 9(1)(b) and/or Article 9A(2)):-- (i) does not contravene any relevant requirement of the Building Regulations and/or (ii) can be clarified in one or more submissions to the Building Control Authority of a Revised or Updated Design. [Strike out the last sentence also if not applicable] 3. I undertake to inspect the Project to which this Commencement Notice (and the accompanying plans, specifications and particulars listed in the schedule) apply in accordance with the Code of Practice for Inspecting and Certifying Building Works, with the assistance of other members of the design team which I coordinate, so as to assist in turn the construction team led by the Builder and his/her General Foreman to achieve reasonable standards in the Project of health and safety for persons in or about buildings and any other persons who may be affected by buildings or matters connected to buildings, in accordance with the relevant requirements of the Second Schedule of the Building Regulations, as applicable to the building works concerned, with a view to me certifying the Project on completion. Signature: ___________________________ Date: __________________ Tel: _________________________ Fax: ___________________ Email: __________________________________ Name of person(s): _______________________ Address:____________________________________________________________________ ___________________________________________________________________________ This is a substitute for the “FORM OF CERTIFICATE OF COMPLIANCE (UNDERTAKING BY PERSON ASSIGNEDTO INSPECT AND CERTIFY WORKS” at page 13 of the DECLG Draft


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RIAI 03C - FORM OF CERTIFICATE OF COMPLIANCE (REVISED OR UPDATED DESIGN)



Planning Register Ref.(s). Entered on

Fire Safety Cert. Ref.(s): Bldg. Ctrl. Register Cert No.

Disability Access Cert. Ref(s): Previous Design Cert No.


Commencement Notice No. 7 Day Notice No.

Certifier Registration No. Certifier same as Designer: Yes/No

Builder: Assigned Person: Yes/No

Builder Registration No.: Entered by

1. This certificate has been prepared having regard to the Code of Practice under Article 5(7) of Building Control Regulations 2012, and relates to design of the following building works and/or change of use (hereafter called ‘the Project’): ________________________________________ ___________________________________________________________________________ 2. I am the person assigned to inspect and certify the Project and I certify that the plans, specifications, calculations and other particulars of the Project design (including any relevant Sub-Certificates), which are included in the schedule attached to this certificate, have been prepared by me and/or by other members of the design team which I coordinate, and/or by members of the construction team which the Builder coordinates, to demonstrate and facilitate compliance with the relevant requirements of the Second Schedule of the Building Regulations, and compliance with the terms of any relevant planning permission, Fire Safety Certificate and Disability Access Certificate granted for the Project prior to ____________________ [date], and compliance with the terms of any 7 Day notice submitted for the Project, sufficient to ensure reasonable standards of health and safety for persons in or about buildings and any other persons who may be affected by buildings or matters connected to buildings. 3. I certify, having regard to the scheduled plans, specifications, calculations and particulars referred to above, that the proposed design for the Project does not contravene the relevant requirements of the Second Schedule of the Building Regulations. Signature: ____________________ Date: __________________ Tel: _________________________ Fax: ___________________ Email: __________________________________ Name of person(s): _______________________ Qualification(s): _______________________ Address:____________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

This is a new form for which the DECLG Draft does not provide.


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RIAI-04C CERTIFICATE OF COMPLIANCE ON COMPLETION



Planning Register Ref.(s): Entered on

Fire Safety Cert. Ref.(s): Bldg. Ctrl. Register Cert. No.

Disability Access Cert. Ref.(s): Previous Assignee:

Owner/Developer: Previous Assignee Cert. No.

Commencement Notice No. Partly Residential: Yes/No

Certifier Registration No. 7 Day Notice No.

Builder: Certifier same as Designer: Yes/No

Builder Registration No.: Assigned Person: Yes/No

Foreman Mbl. Phone no.: Entered by:

1. This certificate has been prepared having regard to the Code of Practice under Article 5(7) of Building Control

Regulations 2012, and relates to the following building works or change of use (hereafter called ‘the Project’). 2 I confirm that I am the person assigned (or the successor to that person as previously and duly notified to the

Building Control Authority) by the owner of the relevant Project to inspect and certify it. I now certify that I have inspected the works in Project in accordance with the Code of Practice for the oversight of Building Works, and with reasonable skill, care and diligence with the assistance of other members of the design team which I coordinate, and of the construction team led by the Builder and his/her General Foreman and that the Project as completed achieves reasonable standards of health and safety for persons in or about buildings and any other persons who may be affected by buildings or by matters connected to buildings, in accordance with the relevant requirement of the Second Schedule of the Building Regulations as applicable to the Project concerned.

3 Plans, specifications, calculations and further particulars are listed and included at the Annex to this form for the

purposes of (i) outlining how the Project as completed differs from the Project as designed (having regard to the documents submitted with (and subsequent to) the relevant Commencement Notice) and uploaded by the Building Control Authority on foot of Article 9(1)(b) and/or Article 9A(2), and (ii) demonstrating the basis on which I am satisfied that the Project as completed has achieved reasonable standards of health and safety for persons in or about buildings and any other persons who may be affected by buildings or by matters connected to buildings, in compliance with the relevant requirements of the Second Schedule of the Building Regulations relevant to the Project concerned and of the Code of Practice.

Signature: ___________________________ Date: __________________ Tel: _________________________ Fax: ___________________ Email: __________________________________ Name of person(s): _______________________ Address: ___________________________________________________________________

OFFICIAL USE _________________ Register Ref. _________________ Entered on _________________ Entered by _______________


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Page Two

OF RIAI-04C CERTIFICATE OF COMPLIANCE ON COMPLETION

Annex (1)

Table of (1) drawings used for the purpose of construction, and (2) other Calculations, Specifications

and Particulars showing how the completed building or works differ from the design submitted at

Commencement Notice Stage.

(Details of relevant drawings, etc. may be listed below and attached hereto)

Note: As constructed drawings has a particular meaning, the record as of what was accurately built,

which will require a separate survey. This is a matter of substantial debate in the context of the SHW

regulations, on foot of which the wording “drawings used for the purpose of construction” was

accepted by the Health and Safety Authority as an appropriate one.

Annex (2)

The schedule of information on builders, sub-contractors, suppliers, specialists, tests, and

commissioning as specified in the Code Of Practice, confirming that particular elements of the

Project as completed have achieved compliance with the requirements of the Second Schedule

of the Building Regulations relevant to the Project, in accordance with the Code of Practice.

This is a substitute for the “FORM OF CERTIFICATE OF COMPLIANCE (UNDERTAKING BY PERSON

ASSIGNEDTO INSPECT AND CERTIFY WORKS” at pages 20-21 of the DECLG Draft


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RIAI 05D FORM OF CERTIFICATE OF COMPLIANCE (UNDERTAKING BY PERSON ASSIGNED

TO BUILD AND SUPERVISE THE PROJECT




Fire Safety Cert. Ref.(s): Bldg Ctrl Register Cert. No.

Disability Access Cert. Ref.(s).: Partly Residential: Yes/No

Owner/Developer: 7 Day Notice No.

Person assigned to inspect/certify: Entered by:

Inspector/Certifier Registration No.

Builder:


General Foreman:

Foreman Mbl Phone no.:

1. This certificate has been prepared having regard to the Code of Practice under Article 5(7) of Building Control Regulations 2012, and relates to the following building works and/ or change of use (hereafter called ‘the Project’): _________________________________________________ The certificate has been prepared for attachment to the “Form of Certificate of Compliance (Design)”. 2. I confirm that I and my firm have accepted from the Owner/Developer the assignment to build and supervise the Project outlined in the Commencement Notice to which this certificate is attached, and to fulfill my duties with reasonable skill, care and diligence. I confirm that I and the General Foreman named above have checked the design on which the “Certificate of Compliance (Design)” is based (as uploaded by the Building Control Authority on foot of Article 9(1)(b) and/or Article 9A(2)) of the Building Control. I confirm that I and my firm are competent to build the Project under the supervision of the General Foreman named above, and shall do so in accordance with relevant requirements of the Building Regulations. I confirm that my firm has arranged Latent Defects Insurance for the project, with six years minimum cover from the date of completion of the works, and that the requisite premium has been paid. I confirm that the particulars of cover as set out in the insurance policy details (see attached with this certificate) are in accordance with the above Code of Practice. 3. I confirm that I, together with the General Foreman and all employees, subcontractors and specialists appointed by my firm, shall cooperate with the person(s) whom the Owner/Developer has appointed to inspect and certify the Project. We shall provide to him/her on request and/or when prudent, such plans, calculations, specifications and particulars (e.g. photographs before concealment of excavations or works) as may assist that person to collate particulars for purposes of handover and certification, and/or for further submissions to the Building Control Authority. We confirm that we shall provide sub-certificates of design and construction compliance from each sub-contractor responsible for design, specification and/or tests of elements of the building. We undertake to build and supervise the works in accordance with the Code of Practice referred to above and in accordance with the directions of the person appointed to inspect and certify the Project, so as to achieve reasonable standards in the Project of health and safety for persons in or about buildings and for any other persons who may be affected by buildings or matters connected to buildings, in accordance with the relevant requirements of the Second Schedule of the Building Regulations, as applicable to the building works concerned. The construction team shall be led and coordinated by the General Foreman, with a view also to him and me certifying the building works on completion.


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Page Two

RIAI 05D FORM OF CERTIFICATE OF COMPLIANCE (UNDERTAKING BY PERSON ASSIGNED


Signature: ___________________________ Date: __________________

Tel: _________________________ Fax: ___________________

Email: _______________________________

Name of person(s): _______________________

Address: ____________________________________________________________________


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RIAI 06D FORM OF CERTIFICATE OF COMPLIANCE ON COMPLETION BY PERSON ASSIGNED




Planning Register Ref.(s). Entered on

Fire Safety Cert Ref(s): Bldg Ctrl Register Cert. No.:

Disability Access Cert. Ref.(s).: Final Cert. of inspector/certifier: No.:

Design Compliance Cert. Register No. Cert. no. Builder Assignment


Person assigned to inspect/certify: 7 Day Notice No.

Inspector/Certifier Registration No. Entered by

Builder:


General Foreman:

Foreman Mbl. Phone no.:

1. This certificate has been prepared having regard to the Code of Practice under Article 5(7) of Building Control Regulations 2012, and relates to the following building works and/ or change of use (hereafter called ‘the Project’): _________________________________________________ The certificate has been prepared for attachment to the “Form of Certificate of Compliance on Completion” by the person(s) whom the Owner/Developer has appointed to inspect and certify the Project. 2. I confirm that I and my firm accepted from the Owner/Developer the assignment to build and supervise the Project outlined in the Commencement Notice to which this certificate is attached, and to fulfill our duties with reasonable skill, care and diligence. I confirm that my firm have built the works described in the plans, calculations, specifications and other particulars on which the above “Certificate of Compliance (Design)” was based (as uploaded by the Building Control Authority on foot of Article 9(1)(b) and/or Article 9A(2)) of the Building Control and as described in particulars later uploaded prior to ___________ [date]. I confirm that my firm have built the works under the supervision of the General Foreman named above (and any predecessors, all as duly notified in advance to the Building Control authority) in accordance with relevant requirements of the Building Regulations. I confirm that my firm has arranged Latent Defects Insurance for the project, with six years minimum cover from today’s date, and that the requisite premium has been paid in full. I confirm that the particulars of cover as set out in the insurance policy details (see attached with this certificate) are in accordance with the above Code of Practice. 3. I confirm that I, together with the General Foreman and all employees, subcontractors and specialists appointed by my firm, have cooperated with the person(s) whom the Owner/Developer has appointed to inspect and certify the Project. I confirm that we have provided to him/her on request and/or when prudent, such plans, calculations, specifications and particulars (e.g. photographs before concealment of excavations or works) as might assist that person to collate particulars for purposes of handover and certification, and/or for further submissions to the Building Control Authority. We confirm that we have provided sub-certificates of design and construction compliance from each sub-contractor responsible for design, specification and/or tests of elements of the building. I confirm that we have built and supervised the works in accordance with the Code of Practice referred to above and in accordance with the directions of the person appointed to inspect and certify the Project, so as to achieve reasonable standards in the Project of health and safety for persons in or about buildings and for any other persons who may be affected by buildings or matters connected to buildings, in accordance with the relevant requirements of the Second Schedule of the Building Regulations, as applicable to the building works concerned. The construction team has been led and coordinated by the General Foreman named above (and any predecessors, all as duly notified in advance to the Building Control authority) with a view to him and me providing the present Certificate on completion.


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Page Two

RIAI 06D FORM OF CERTIFICATE OF COMPLIANCE ON COMPLETION BY PERSON ASSIGNED


Signature of Builder: ________________________ Date: __________________

Name of person(s): _______________________ Tel: _________________________

Email: _______________________________ Fax: ___________________

Address: ____________________________________________________________________

Signature of General Foreman: ________________________ Date: __________________


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SECTION EIGHT

RELATED ISSUES

8.1 Comprehensive Application of the Regulations

It is understood that the Regulations will apply to buildings requiring Fire Certificates and

Disability Certificates and Single Houses. The addition of Single Houses is a welcome

development which would have a significant impact on consumer protection. However, it is

difficult to see why the regulations should not apply to all building work, possibly exempting

domestic extensions of up to 40 sq. m not requiring planning permission. It is the

experience of the RIAI that most of the problems the average consumer experiences are in

the area of domestic extensions and renovations. When real problems occur there is little

or no redress available to the consumer.

8.2 Disability Access Certificates

As the proposed system envisages the lodgement of Commencement Notices showing

compliance with the Building Regulations, it is difficult to understand and justify a separate

system for Disability Access Certificates particularly in the context of completion

certifications.

Disability Access has become a mainstream design activity and the proposed system will

facilitate and strengthen this approach.

8.3 As Built Documentation

Reference is made from time to ‘as built drawings and documentation’ at completion stage.

This may seem a minor point ‘as built drawings’ have a particular meaning ie exactly what

was built and would require a separate survey and separate documentation to establish

this process. In the context of the safety legislation the material that is required to be

placed on the Safety File, for the benefit of those carrying out subsequent renovations and

maintenance, refers specifically to drawings used for the purposes of construction ie

construction drawings and specifications, final revisions and any significant ancillary

sketches/instructions etc issued to the project contractor but not “as built”.


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8.4 Fire Safety Certificates and Houses

RIAI in the context of the proposed revisions to Part B has recommended that Fire Safety

Certificates should be required for single houses on the basis that this is where much of the

serous risk to life occur.

8.5 21 Day Notification System

There are concern about the 21 Day Notification System validation required on lodgement

of the Completion Certification and documentation. The effective use of bReg should

ensure that only valid and defined information as required in the Code of Practice is

actually lodged and recorded. At this point it is difficult to see what useful purpose could be

served beyond acknowledging receipt of the relevant documentation on an administrative

basis.


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SECTION NINE

9. Appendices

9.1 Letter from Hayes Solicitors, dated 27 April 2012 on Liability under the proposed

Regulations.

9.2 High Level Observations by Marsh/RIAIs on the Building control (Amendment)

Regulations 2012.

9.3 2012 Consultation on Changes to the Building Regulations in England and Wales

(Department of Communities and Local Government).

9.4 Liability and Insurance Regimes in the Construction Sector:

- National Schemes and Guidelines to Stimulate Innovation and Sustainability

- Elios Report dated 30 April 2012.

9.5 CIF and the Irish Home Builders Association Voluntary Code of Practice

Competency Assessment for PSCS/Contractors, Health and Safety AuthorityRIAI Pre-

Qualification Questions for Contractors.

9.6 Strategic Review of the Construction Industry

Extracts dealing with:

- Training of skilled construction workers and builders

- Registration of builders and sub-contractors and

- Measure to ensure enforcement of the Building Regulations