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The Building Control (Amendment) Regulations 2014

March 2014

The Building Control (Amendment) Regulations 2014 were enacted on 1 March 2014 and had a significant impact on all stages of the building process from initial design to completion. This article summarizes the legislation governing Building Regulation and the amendments introduced by the Building Control (Amendment) Regulations 2014.

The Building Control System

Building Regulations are a set of legal requirements which govern the design and construction of new buildings, extensions and material alterations to, and certain changes of use of, existing buildings. Building Regulations set out the basic requirements to be observed in the design and construction of buildings. The legislative framework for the building control system is contained in the following:

a) The Building Control Acts, 1990 & 2007,
b) Building Regulations 1997 – 2013, and
c) Building Control Regulations 1997 – 2014.

The Building Control (Amendment) Regulations 2014 (the “Regulations”) should be read and interpreted side by side with existing legislation. The Regulations have significantly altered the regime for compliance with the law in this area.

The Regulations apply to the following:

  • Design and construction of new dwellings.
  • An extension to a dwelling where the extension is greater than 40 square metres.
  • Works where a fire safety certificate is required, so virtually any type of commercial building.

It is intended that the Regulations will play an important role in moving towards an improved culture of building control. The Government has stated that “the Regulations set out to prevent the future reccurrence of poorly constructed dwellings, pyrite damage and structures breaching fire regulations left as a legacy of a poorly regulated housing boom…..the new Regulations are a major step forward and will for the first time give home-owners clarity, traceability and accountability at all stages of the building process..”

If a valid Commencement Notice was received by the relevant building control authority on or after 1 March 2014, the new building control regime will apply to the works so it is therefore imperative that all persons affected by the new regime be aware of their legal obligations.

Changes introduced by the Regulations will have a direct impact on all professionals involved in the building process, from engineers to building surveyors and architects to members of the professional design team. The new regime allows the various parties involved in the building process a greater level of control and involvement throughout the design and construction process.

The most significant change brought about by the Regulations is the revision of the Commencement Notice, together with the introduction of the following new types of mandatory statutory certificates to be submitted at various stages in the construction process, which must be in the forms as attached to the Regulations:

  • Certificate of Compliance (Design).
  • Certificate of Compliance (Undertaking by Assigned Certifier) / Certificate of Compliance (Undertaking by Builder).
  • Certificate of Compliance on Completion.

The wording of these statutory certificates has been subject to a great deal of debate among affected parties. When the precursor to the Regulations – the 2013 Building Control Regulations – were proposed, many parties expressed concern at the onerous new certification obligations in the mandatory statutory certificates. Much of this concern centred on the fact that the wording imposed a strict liability on the professional signing the certificate and could have caused difficulty in terms of potential liability and professional indemnity insurance. The 2013 Regulations, which have been revoked, have been replaced by the 2014 Regulations which have introduced the concept of reasonable skill, care, and diligence, and reliance on ancillary certificates in the wording of the certificates following input from various stakeholders, as outlined in further detail below.

Building Control Management System

The Regulations establish the Building Control Management System (the “BCMS”), which is defined in the Regulations as “the information technology-based system hosted by the Local Government Management Agency and developed to facilitate the electronic administration of building control matters by building control authorities as the preferred means of building control administration”.

The BCMS provides an online repository for submission of statutory documents to the building control authority. The BCMS allows building owners to nominate the various parties which need to be involved in the building process meaning that each party must be registered with the BCMS to enable them to complete their notices and certificates.

The Commencement Notice and accompanying documentation must be filed electronically via the BCMS. It is still possible to submit documentation in written format to the local authority, however an administrative charge will be applied and statutory deadlines relating to such notices may be delayed as a result.

New Statutory Roles

The Regulations have created a number of new roles, e.g. the “Design Certifier” who must certify that the design of the works complies with the Regulations. The building owner must also appoint a “Builder” and an “Assigned Certifier” at certain stages throughout the build. These roles are discussed in further detail below.

Code of Practice for Inspecting & Certifying Buildings and Works

A Code of Practice for Inspecting and Certifying Buildings and Works (the “Code of Practice”) was published in February 2014 by the Minister for the Environment, Community and Local Government for the purposes of providing guidance with respect to inspecting and certifying works. The Code is a practical working document which outlines how the various parties should manage their respective roles.

The Regulations state that compliance with the Code of Practice will, prima facie, be taken as compliance with the relevant requirements of the 2014 Regulations. However, the Regulations further state that the use of another inspection framework or approach is not prohibited.

Statutory Register

The Building Control Regulations, 1997, provide that a register shall be maintained by the building control authority which should include various information such as valid commencements notices, applications for fire safety certificates and so forth. The Regulations have broadened the information to be noted on this register to include information relating to the new requirements under the Regulations e.g. details of valid Certificate of Compliance on Completion received by the authority. The register, where it is not available on the website of the local authority concerned, should be available for inspection at the offices of the local authority during office hours.

New System of Certification

Once planning permission has been obtained but before building starts, the Regulations provide that certain forms must be submitted to the building control authority.

Depending on the proposed works, if it is necessary to submit a Commencement Notice the building owner has a statutory responsibility to appoint a Designer, Assigned Certifier and Builder. Under the new regime, building owners will need to be formally engaged in the building process as failure to adhere to the requirements of the Regulations can constitute an offence. The building owner must also ensure that adequate resources and competent persons are chosen to design, construct, inspect and certify the building works.

a.    Commencement Notice

Whilst the obligation to submit a Commencement Notice is not new, significant changes have been made to the documentation and forms required to be submitted with an application for a Commencement Notice. These forms must be in the format as appended to the Regulations meaning there is no scope to amend their wording.

The Commencement Notice, which must be signed by the owner of the works, should be filed electronically via the BCMS or set out in the form as attached to the Regulations. No work can commence without a valid Commencement Notice and one cannot be retrospectively obtained.

The documents which must accompany the application for a Commencement Notice are as follows:

i.    Plans and documentation to show how the proposed works or building complies with the requirements of the regulations.

The Regulations state that this should include general arrangement drawings including plans, sections and elevations, and a schedule of such plans, calculations, specifications and particulars as are currently designed or as are to be prepared at a later date.

It is also necessary at this stage to complete an online assessment, via the BCMS, of the proposed approach to compliance with the requirements of the Building Regulations, which contains the various certifications (discussed below), representing the most significant change to the regime.

ii.    Preliminary Inspection Plan

A Preliminary Inspection Plan must be submitted with the application. This is a certification furnished by the Assigned Certifier, i.e. a design professional, that the building or works is in compliance with the requirements of the Building Regulations and outlines how compliance will be achieved.

The Assigned Certifier is appointed by the Building Owner and must be either a registered architect, registered building surveyor or chartered engineer, as is defined in the Code as “a competent, registered professional person so assigned, in accordance with the Building Control Regulations”.

The role of the Assigned Certifier is one of oversight and they must undertake to inspect and coordinate and activities of others during construction, and to certify the building works on completion. Responsibility for compliance, however, remains with the person carrying out the works.

The Code of Practice provides that the Assigned Certifier is the single point of contact with the building control authority throughout the build project and can refer disputes regarding compliance in relation to same to the authority.

iii.    A Certificate of Compliance (Design)

A Design Certificate must be lodged with the Commencement Notice, which must be signed by the Design Certifier who must be either a registered architect, registered building surveyor or chartered engineer, who must be competent to carry out their design and to co-ordinate the design activities of others for the works concerned.

It would generally be expected that the lead designer would assume the role of the Design Certifier, who, in compiling the plans and documentation and in preparing the Design Certificate, essentially confirms that the design of the works is in accordance with Building Regulations.

The Design Certificate contains certain statements which the Design Certifier must confirm and certify, including:

  • Confirmation that the design professional is competent to carry out the design and to coordinate the design of others.
  • Confirmation hat the plans, ancillary certificates and other documents (as detailed in the schedule to the Commencement Notice) have been prepared by both the design professional and the design team exercising reasonable skill, care and diligence, to demonstrate compliance with the Regulations.
  • Certification that the design for the building or works is in compliance with the requirements of the Second Schedule to the Building Regulations.

The Design Certifier is responsible for co-ordinating and compiling and scheduling of the plans, calculations, specifications and particulars to be included in application for a Commencement Notice which includes collating the necessary ancillary certificates. The reference to “ancillary certificates” relates to the number of other certificates provided by building professionals which are likely to be involved in any project, such as Consulting Engineers, Architects and Architectural Technologists/Technicians and competent technical and trade persons.

Therefore, although the Design Certifier bears overall responsibility for certifying the design, he is permitted to rely on the certificates of others, subject to the requirement that it is reasonable to do so.  The Design Certifier should give careful consideration to the identity of those persons from whom he or the building owner must procure the necessary ancillary certificates.

Where elements of the design have not been completed, these should be clearly set out with an undertaking that when complete, these too will be certified and submitted to the Building Control Authority.

iv.    Notice of Assignment (Assigned Certifier);

The building owner must nominate to the building control authority the Assigned Certifier who will perform inspections throughout the lifetime of the works and certify compliance once the works have completed.

The form must be signed by the building owner and includes the following statements:

  • Confirmation that the building owner has assigned the Assigned Certifier in respect of the works.
  • Confirmation hat the building owner is satisfied having regard to the Code of Practice that the Assigned Certifier is competent to inspect the building or works and to coordinate the inspection work undertaken by others, and to certify the works for compliance with the Building Regulations.
  • Undertakiing to notify the Building Control Authority in writing of any change in the person assigned to inspect and certify the building or works.

The Code of Practice states that a change in Assigned Certifier or Builder over the course of the works is a significant alert to the risk analysis system of the Building Control Authority, which may trigger an inspection of the design and other documents and a site inspection.

v.    Notice of Assignment (Builder)

The building owner must also nominate a Builder who will carry out the works and the certificate contains the following statements:

  • Confirmation that the building owner has assigned a Builder for the works and that the building owner is satisfied they are competent to undertake the works assigned on behalf of the building owner.
  • Undertaking to notify the Building Control Authority in writing of any change in the person assigned to inspect and certify the building or works.

vi.    Certificate of Compliance (Undertaking by Assigned Certifier)

This certificate must be signed by the Assigned Certifier the form as prescribed by the Regulations. It contains statements to the following effect which the Assigned Certifier must confirm and certify, including:

–    Undertaking by the Assigned Certifier to use reasonable skill, care and diligence to inspect the building or works and to coordinate the inspection work of others; and
–    Certification by the Assigned Certifier of compliance with the Building Regulations, following the implementation of the inspection plan.

Paragraph 3.5 of the Code of Practice provides that the Assigned Certifier does not bear responsibility for supervision of the Builder.

vii.    Certificate of Compliance (Undertaking by Builder)

The Builder is also required to complete a Certificate of Compliance in the form as outlined in the Regulations to be submitted with the Commencement Notice application.

The Certificate of Compliance contains the following statements:

  • Confirmation that the Builder has been commissioned by the building owner to undertake the works and the Builder is competent to undertake the works concerned.
  • Undertaking by the Builder to ensure that any persons employed or engaged by the Builder to undertake any of the works involved will be competent to undertake such works.
  • Undertaking by the Builder to construct the building or works in accordance with the plans, calculations, specifications, ancillary certificates and particulars listed in the schedule to the Commencement Notice to which the undertaking refers and certified under the Form of Certificate of Compliance (Design).
  • Having regard to the Code of Practice, the Builder must undertake to cooperate with the inspections set out in the inspection plan prepared by the Assigned Certifier and to take all reasonable steps so as to ensure that the Builder shall certify that the building or works is in compliance with the requirements of the Building Regulations insofar as they apply to the works.

b.    Certificate of Compliance on Completion

Once a building has been completed, a two-part Certificate of Compliance on Completion in the form as specified in the Regulations must be completed – Part A by the Builder (to be signed by a Principal or Director of a Building Company only) and Part B by the Assigned Certifier.

The Certificate of Compliance on Completion must be accompanied by:

  • by such plans, calculations, specifications and particulars as are necessary to outline how the works or building as completed:
    • differs from the plans, calculations, specifications and particulars submitted; and
    • complies with the requirements of the Second Schedule to the Building Regulations; and
  • the Inspection Plan as implemented by the Assigned Certifier in accordance with the Code of Practice.

In terms of liability, the Builder is not asked to confirm that they have fulfilled their legal duty to build in accordance with the Building Regulations but rather must certify that the works have been constructed in compliance with the design documentation:

“…having exercised reasonable skill, care and diligence, that the building or works as completed has been constructed in accordance with the plans, calculations, specifications, ancillary certificates and particulars as certified under the Form of Certificate of Compliance (Design) and listed in the schedule to the Commencement/7-Day Notice relevant to the above building or works…..

Reliant on the foregoing, I certify that the works are in compliance with the requirements of the Second Schedule to the Building Regulations insofar as they apply to the building or works concerned.”

The Assigned Certifier must declare as follows:
“I now confirm that the inspection plan, drawn up having regard to the Code of Practice for Inspecting and Certifying Buildings and Works, or equivalent, has been undertaken by the undersigned having exercised reasonable skill, care and diligence, and by others nominated therein, as appropriate, on the basis that all have exercised reasonable skill, care and diligence in certifying their work in the ancillary certificates scheduled…
Based on the above, and relying on the ancillary certificates scheduled, I now certify, having exercised reasonable skill, care and diligence, that the building or works is in compliance with the requirements of the Second Schedule to the Building Regulations, insofar as they apply to the building or works concerned.”
In terms of the Assigned Certifier’s liability, Gavin Ralston SC in his opinion  commissioned by the RIAI, states that the Assigned Certifier’s obligations do not go beyond the exercise of reasonable skill, care and diligence and do not provide a warranty as to the accuracy of the certificates provided by others.  He does, however, state that reliance on the certificates of others does not obviate the obligation of the certifier to be satisfied that the reliance on the certificates of others is reasonable.
Once the Certificate of Compliance on Completion and ancillary certificates have been submitted to the building control authority, the authority will confirm within twenty one days whether the Certificate is valid or not. If the Certificate is valid, the authority will enter particulars relating to the relevant certificate on the statutory register and shall notify the person who submitted the certificate that particulars have been included on the register.

A Certificate of Compliance on Completion must be sent to the Building Control Authority and included on the statutory register before works or a building to which these regulations apply can be opened, occupied or used.

Conclusion

The processes introduced by the Regulations will increase the potential liabilities of all parties involved in the building process. This increased responsibility for owners, builders and design professionals is likely to increase the cost of completing projects and consideration should be given to whether each party has adequate insurance cover to capture their new and greater obligations.

The Regulations have undoubtedly transformed the building landscape through the introduction of a number of significant changes at all stages of the construction cycle. The new processes will take some time to settle and it might take some time before the effects of the Regulations are actually seen in a practical sense given the low level of building activity in Ireland at the moment. There is no doubt that the Regulations raise accountability and provide greatly enhanced visibility by developing a culture of compliance within the building industry and it is to be hoped that this will ensure better standards in building works in the future.

For more information on the Building Control (Amendment) Regulations 2014 and your obligations thereunder, contact Suzanne Hannon or your usual Whitney Moore contact.