Author: Cormac Bradley BSc CEng FIEI MICE, construction manager, RPS Group (Ireland)
On 1 March 2014, a new regime of Building Control came into force. The implications of the new system of building control are set out in SI No.9 of 2014 and the associated Code of Practice for the Inspecting and Certifying of Buildings and Works.
These two documents were generated as a consequence of a consultation process that was initiated by the Department of Environment, Community and Local Government (DoECLG) and involved the five major stakeholders in the building sector: the Association of Consulting Engineers of Ireland (ACEI), the Construction Industry Federation (CIF), Engineers Ireland (EI), the Royal Institute of Architects of Ireland (RIAI) and the Society of Chartered Surveyors (SCSI). However, the Department received over 500 submissions on the subject.
No précis on the consultation process would be accurate if it did not record the fact that the new regime of building control has not been greeted with universal accord. Some professionals have concerns about the new regime and the liability issues that they perceive arise from the new responsibilities that emanate from the Regulations.
However, it must also be noted that the documentation that has evolved is the product of a consultation process and, accordingly, a compromise process. With five different institutions in the room, talking to government officials, not everyone was initially singing off the same hymn sheet. However, we should also remember the new Regulations and the associated Code of Practice have evolved as a consequence of Government engaging with the sector and, in that regard, we have enjoyed a much more ‘coal-face’ orientated process than may have been the case in the past.
Since the 1 March introduction of the Building Control (Amendment) Regulations (BC(A)R), the four ‘design’ institutions have continued with meetings to develop the Ancillary Certificates that go with the Building Control Regulations and the associated Code of Practice. As with the original consultation process, not all the parties agreed initially, but ultimately the wording and format for the Ancillary Certificates to be used by design professionals was signed off by the four institutions with a further undertaking that no changes to these certificates would be made without the agreement of all four bodies. In parallel, the CIF has developed its own Ancillary Certificates to be used by the contracting fraternity.
What is the state of play?
A snapshot of the Building Control Management System (BCMS) taken in early July showed that there were 942 Commencement Notices on the register, across 35 local authorities. These were distributed as follows:
| No. of Commencement Notices |
Local Authorities |
| Fewer than 10 |
13 |
| 10 - 50 |
17 |
| 50 - 100 |
3 |
| 100 - 150 |
1 |
| 150 - 200 |
1 |
While there are signs of a recovery in the sector, and anecdotally I have heard that work levels are increasing but that pricing is still very tight, the fact that there are over 900 projects being undertaken in the building sector is a sign that despite the pessimism of the impact of the Regulations on the sector, work is being carried out under the new regime.
There is going to be an ongoing education process for designers, builders and, most importantly, building owners, but after five months this must surely be considered to be a positive development.
Resolving potential problems
A cursory review of the details submitted with each Commencement Notice in terms of the appointment of Building Owners, Builders, Design and Assigned Certifiers, combined with some of the questions that have been directed to Engineers Ireland, indicates that not everyone has appreciated the different roles and responsibilities of the various named individuals in the BC(A)R suite of statutory documentation.
In one case on which I was asked to advise, the Building Owner and Builder were the same person and shared the same surname as the Design Certifier and the Assigned Certifier, who again were the one individual. The four roles were, in fact, being shared by two brothers. The latter individual (DC & AC) could not understand why the local authority was in almost constant contact with him on the details of the building project and, further, did not understand why the local authority had chosen to visit the site without reference to him in his PSDP capacity.
In the Code of Practice, it is stated that the Assigned Certifier will be the principal point of contact for the local authority. There is no reference to a PSDP in the Code of Practice. This undertaking is from a completely separate suite of legislation.
There had been much voiced protest by potential self-builders that the new Regulations would prevent owners doing their own building works and the Minister went to great pains to explain that this practice was not being outlawed, but that there were additional responsibilities attached to this undertaking under the new regime of building control.
The example cited here is indicative of the confusion that potential self-builders generated. There is no overt attempt to preclude self-build projects, but the four principal parties to the building project – the Building Owner, the Builder, the Design Certifier and the Assigned Certifier – must understand how they are supposed to interact with each other on a conventional building project and that sense of separate, independent, but overlapping functions is enhanced when the relationship between the people filling these roles is familial rather than purely professional.
The new system of building control places a significant emphasis on the certification of design, inspection and construction. The suite of Ancillary Certificates for design and inspection by the design professions and the Ancillary Certification by the Builder that confirms their compliance with the original design or the amended and approved design are key elements in the traceability of responsibility for these separate elements of the work.
In a self-build project, or a project where roles are shared among family members, the emphasis on appropriate and comprehensive completion of certification is enhanced, not diminished, because it is this very process that will allow the Certificate of Compliance on Completion to be lodged with the Building Control Authority and, on their approval/acceptance of this Certificate, the building can be occupied.
Flaws in this process may be excused between family members but if the property were to be sold on to a third party later, the absence of the certification might jeopardise the sale.
- Incomplete details on statutory appointments
The Regulations and the associated Code of Practice identify four key parties to a building project. These are the Building Owner, the Builder, the Design Certifier and the Assigned Certifier.
No longer just the entity that initiates a building project, the Building Owner is now required to appoint the other three parties and must also sign the Commencement Notice that is lodged with the Building Authority. Furthermore, they are required to “ensure that adequate resources and competent persons are made available to design, construct, inspect and certify the building”. They are also required to undertake certain obligations if any of the original circumstances or appointments on the project change.
The Builder, Design Certifier and Assigned Certifier are appointed by the Building Owner in writing and must accept their appointments in writing as well. Thus, the individuals taking on these distinct, separate and independent but overlapping roles must be a) identified and b) declared in the Building Control Management System (BCMS) register.
It is an accepted adage that communication and records, records and more records are the keystones to the successful execution of a project! BC(A)R places even more emphasis on these aspects of project management because when design professionals are asked to prepare certificates confirming design best practice and compliance with design codes, they need to ensure that they have ‘covered all the bases’ in evolving their designs. Thus, where a foundation is designed, the structural engineer will need to ensure that the geotechnical engineer has got their ground investigation report right and their calculation of acceptable ground pressure is correct.
The structural engineer who has to design a plinth on which a piece of mechanical plant will sit needs to know the loads that the piece of plant will place on the plinth. The architect who designs an exterior façade for a corporate office will need to ensure that the engineer knows how the façade will be supported. They will each be required to prepare Ancillary Certificates for their respective design assignments and submit that certification to the Assigned Certifier who collates all such certificates in his preparation for the submission of the Certificate of Compliance on Completion.
Designers will be required to arrange for the inspection of the implementation of their designs on site. Thus, an inspection to confirm that Y20s @ 200mm spacing each way, top and bottom were installed in a footing necessitates an Ancillary Certificate (of Inspection) which, like the Ancillary Certificate (for Design) goes to the Assigned Certifier as part of the project records to be uploaded to the project record.
The Builder will be required to prepare Ancillary Certificates to confirm that he has complied with the design, specification and drawings supplied to him or as amended by the Designer.
These various obligations cannot be undertaken in isolation from the other appointees to the project, so communication and interaction are essential under this new regime of building control.
- Liability, exposure, insurance and claims
There is a school of thought within the sector that this regime of building control will lead to design professionals and builders being more exposed to claims by third parties. It is further suggested that the Assigned Certifier will be seen as the ‘last man standing’ and, therefore, the focal point of any legal proceedings where there is an instance of defective work, particularly where the defect manifests itself after Completion.
This is a justifiable fear, except that it is not necessarily a new situation for builders and designers to contemplate. What the new system is effectively asking the building community to do is to take the declarations they make under the various QA and QC systems that we all commit to in our normal professional lives and subject them to the scrutiny of third parties in the case of a failure.
Most design professionals, in the major practices at least, operate to the ISO System of Quality Assurance. This commits the practice and its employees to conduct their activities in accordance with best practice and compliance with appropriate design codes. We undertake to keep clients informed and to alert them to problems that arise in the course of a project. The new Regulations do not change or undermine these existing undertakings.
For the contracting fraternity, the Construction Industry Register Ireland (CIRI) has been established on a voluntary basis for 2014 with the prospect that membership of CIRI will be mandatory for 2015 onwards. The CIRI initiative commits members to developing CPD initiatives for their employees, making tax compliance a prerequisite for builders to undertake building works under the BC(A)R regime, eliminating operations in the black economy and generally improving the standards of the industry going forward.
This is a CIF initiative, which has the support of the DoECLG. Membership is not an automatic right by way of membership of the CIF, but will be an annual registration process.
For design practices, the appointment of employees to the Assigned Certifier position will require a review of the Professional Indemnity Insurances to ensure that the actions of an Assigned Certifier, when his/her appointment is approved by the practice, are covered by PII. For the individual appointee, there will be the requirement to have their appointment confirmed in writing by their employer so that PII cover is not questioned in the context of a subsequent action for negligence.
Likewise, design practices will have to decide on how Assigned Certifiers and Ancillary Certifiers are qualified to take on these distinct roles – an Assigned Certifier will be expected to sign a Certificate of Compliance on Completion in an individual capacity but with the sanction of their employer, whereas an Ancillary Certificate will be prepared by a designer but signed by a Director or Principal of the company employing the designer.
For self-employed chartered engineers, registered architects or registered building surveyors, whom the Code of Practice allows to take on the role of Design and Assigned Certifier, the question of PII is just as pertinent but without the need to decide how employees qualify (internally) to fill these roles. Contractors, too, may have to review their insurance and PII arrangements as they may take on design roles within the context of a building project.
Conclusion
The Building Control (Amendment) Regulations, SI No.9 of 2014 are the new rules by which building control will be managed and compliance with the Regulations will be audited. The associated Code of Practice for Inspecting and Certifying Buildings and Works gives ‘plain-English’ guidance on how compliance can be achieved.
In an era of reduced inspection resources, Building Control Authorities will conduct their on-site inspections of building projects on the basis of risk analysis. Thus, where the information in the Commencement Notice or the statutory appointments required by the new Regulations or the information submitted to the Building Control Authority is deficient, ambiguous or incomplete, or the progressive submission of information and certification is not appropriate, the project can expect to come under the microscope of the BCA.
The obligations of the four principal parties to the project – the Building Owner, the Builder, the Design Certifier and the Assigned Certifier – require an enhanced level of communication, interaction and interdependence but with suitable levels of independent action within the execution phase of the project.
The prospect of increased answerability to the end user or third parties outside the project team is a new reality, but it is an extension of the answerability we provide to our clients and which we manage by way of our adoption of QA and QC systems within our own professional practices.
Rather than shying away from the prospect of increased exposure, we should be embracing the opportunity to show our ability to comply with best practice as a means of defending ourselves against vexatious claims. This is an opportunity to enhance the reputation of the building sector and to reciprocate the opportunity that the DoECLG gave us to ‘put our house in better order’ by way of a comprehensive consultation process.
Cormac Bradley, BSc, CEng, FIEI, MICE is a construction manager with the RPS Group. A graduate of Queen’s University Belfast, the bulk of his experience was gained in South Africa. On returning to Ireland in 2001 he worked in Galway with Ryan Hanley on the watermains remediation project in Galway city, as well as water projects in Crossmolina and Ballyhaunis. Bradley joined RPS and specialised in contract administration and construction supervision on landfill projects before an extended period working on the Corrib Project in Mayo. One of his current work assignments is fulfilling the role of Assigned Certifier on a building project for a pharmaceutical client.
Bradley, with two others, represented Engineers Ireland in the consultation process initiated by the DoECLG for the BC(A)R and was the single Engineers Ireland representative on the Working Group that drafted the associated Code of Practice and the subsequent smaller working group formed by the ACEI, EI, RIAI and SCSI to draft and agree a common suite of Ancillary Certificates for BC(A)R for the design professions.