Amendments to the Building Control Regulations S.I. No.9 of 2014 Annual Construction Law Conference Royal Marine Hotel Dun Laoghaire Thursday 3rd December 2015 Amendments to the Building Control Regulations S.I. No.9 of 2014 S.I. No. 365 of 2015

What are the relevant documents? SI No.9 of 2014. SI No.365 of 2015 Code of Practice for Inspecting & Certifying Buildings & Works Ancillary Certificates Framework for Building Control Authorities Information Note for Owners of new dwellings and extensions who opt out of Statutory Certification for building control purposes

What buildings do the Building Control Regulations apply to? The original requirements of paragraph (1)(b) shall apply to the following works and buildings; the design and construction of a new dwelling, an extension to a dwelling involving a total floor area greater than 40 square metres, works to which Part III applies Fire Safety Certificate

What are the implications for the various stakeholders? S.I No.9 of 2014 Statutory Appointment of Builder, Design Certifier & Assigned Certifier and Statutory Acceptance of Position Filing of an on-line Commencement Notice supplemented the statutory forms identified above Submission, on-line, of an Inspection Notification Framework (INF) – effectively mirroring the Builder’s Programme of Works On-line submission of enough drawings (GAs, Elevations, Sections) to allow the Building Control Authority to conduct a Risk Analysis on the project

What are the implications for the various stakeholders? Assigned Certifier Uploads the Commencement Notice and associated documentation to the BCMS (Statutory Forms, INF, Drawings, Proposed Drawing List) Ensures an Inspection Plan is implemented on site (developed from the INF) Is the sole point of contact for the Building Control Authorities. Collates certification by the Ancillary Certifiers and Specialists Undertakes inspections and co-ordinates the inspection activities of others Is responsible for the uploading of documentation to the BCMS Signs the Certificate of Compliance on Completion (Part B)

What are the implications for the various stakeholders? Design Certifier Signs the Design Certificate that is lodged with the Commencement Notice Co-ordinates and compiles the plans, calculations, specifications and particulars of the project Effectively the Project Manager of the Design Team Ancillary Certifiers Architects, Consulting Engineers, Designers, Competent Trade & Technical persons, subcontractors, suppliers, manufacturers Prepare Ancillary Certificates for Design, Inspection and Completion

What are the implications for the various stakeholders? Builder Accepts the assignment to build and supervise the building or works Familiarises themselves with the drawings, specifications and documents Ensures a competent person is assigned to oversee the Construction works Co-operates with the design team, the Assigned Certifier and other Certifiers Ensures that workmanship and materials comply with the Building Regulations Signs the Certificate of Compliance on Completion (Part A) Provides documentation to the Assigned Certifier as required Co-ordinates and provides all test certificates and confirmations to the Assigned Certifier Maintains records

What are the implications for the various stakeholders? Building Owner Is ultimately responsible for ensuring that the building or works are carried out in accordance with the Building Regulations (Reference Code of Practice, Clause 3.2) Shall appoint a competent Builder and competent registered professionals to act as Designer and as Assigned Certifier Specifically Ensure that a Fire Safety Certificate and a Disability Access Certificate are obtained where required Sign the Commencement Notice Sign the Notice of Assignment for the Builder, Design Certifier and Assigned Certifier

Ivory Tower or Collaborative Working? Building Owner Assigned Certifier Design Certifier Ancillary Certifier(s) Builder Building Control Authority Interaction with all the parties is critical, because the documentation requires a collaborative approach! Interdependence!

Ivory Tower or Collaborative Working? Building Compliance Specialists Building Owner Builder Assigned Certifier Design Certifier Ancillary Certifier

Ivory Tower or Collaborative Working? The suggestion that there is no risk associated with the Assigned Certifier’s role is false!! Can the risk be managed ? Yes! How? Records Communication between the contracted parties,(building owner, designers, design certifier, builder(s), BCAs, FSC certifiers) Transparency Site Visits Is the role of the Assigned Certifier risk free?

The subtle differences between an ER and an Assigned Certifier! Employer’s Representative Supervision (or Inspection) Power to order works May be a member of the design team (architect) but may be a construction specialist (engineer) May, subject to terms of appointment, be on site in a full time capacity Processes interim certification Keeps records Assigned Certifier Inspection May not order works May be a member of the design team No requirement to be on site full time No financial responsibilities Keeps records

Know your role! Inspection versus Supervision – Know the difference! Assigned Certifier Design Certifier & Builder Ancillary Certifiers

The challenges presented by large and complex buildings? First challenge is in the title of this slide – they are large and complex! Extensive drawing list – drawing upload at Commencement Notice stage Upload of representative drawings for each discipline for Certificate Multiple design disciplines – Architectural, Structural (RC, Steel, Precast), Civil, Mechanical, Electrical, Sprinkler systems, Fire Protection, Services

The challenges presented by large and complex buildings? Substantial suite of Ancillary Certificates – Architects, Engineers, Sub-Contractors, “Sub-Sub-Contractors”, Design Engineers to Sub-Contractors Requirement to have Ancillary Certificates for Design, Inspection and Completion Inspection of Works for Ancillary Certification (Completion) relative to physical progress on site and occupancy deadlines. Staggered occupancy

The challenges presented by large and complex buildings? The time spent on interacting with other members of the project team is proportional to the size of the project The requirement to show design compliance, that a design has been implemented on site and that the works have been constructed in accordance with the original or amended and approved design

Practice versus Review? Were the changes to SI No.9 really necessary? SI No.9 (2014) had a gestation period of 15 – 18 months Was the result of a consultation process with the five industry stakeholders of the building sector Statistics showed that there was a significant level of building activity under SI No.9 regime The milestone review mechanism was intended to be based on a statistical and practice assessment of how the SI was being implemented Review process was “hijacked” for other reasons and the resultant SI No.365 (of 2015) has reduced the effectiveness of the original legislation

What are the implications for the developers and individual home-owners arising from SI 365 of 2015? Building owners of “new single dwellings on a single unit development, or an extension to a dwelling” can exercise an opt-out clause from Statutory Certification. With the following cautionary notes; “ Homeowners should appraise themselves of any potential cost or other implications that may arise as a result of choosing to opt out of the statutory process. Prior to deciding on whether or not to avail of the opt out option, it is recommended that a homeowner should consult with their solicitor.” “Irrespective of whether the homeowner decides to comply with the statutory certification requirements or to follow the alternative process……….they must continue to meet their obligation under the Building Control Act 1990 to 2014 to ensure that the design and construction of the building concerned complies with the relevant requirements of the Building Regulations.”

What are the implications for the developers and individual home-owners arising from SI 365 of 2015? Has indicated that; “ the Local Building Authority is alerted to the intention to commence building works and is therefore in a position to; (ii) Assess which projects should be subject to risk-based inspections as typically undertaken on at least 12 – 15% of validly commenced building units……….. Inspection by local building authorities remains a prospect for homeowners irrespective of whether or not a homeowner opts out of the statutory certification process.” There has been a suggestion that the Assigned Certifier role may be opened up to more industry professionals

What are the implications for the developers and individual home-owners arising from SI 365 of 2015? Homeowners who opt out of statutory compliance will no longer require the services of an Assigned Certifier Homeowners are advised to seek the advice of solicitors on the implications of making this decision It could be argued that the fraternity that needs the most technical advice on building, the lay builder, is no longer required to make use of that advice in a mandatory manner Multi-unit developers still require the services of an Assigned Certifier

What are the implications for the developers and individual home-owners arising from SI 365 of 2015? Some industry comments! Relationship between building sector and DoECLG is damaged by the unwillingness of the Ministers to act on the recommendations of the industry stakeholders……….who were “ad idem” on the Ministers’ proposals for change Generates a two tier system of compliance – “To comply or not to comply, that is now the question” A loophole has been created for 50% of the building sector market to avoid Statutory compliance SI No.9 had generated a sea change in attitude to building standards and a unity among the sector’s stakeholders

What are the implications for the developers and individual home-owners arising from SI 365 of 2015? Some industry comments! One-off and self-builders may have a commercial advantage over the established builders Concern that SI 365 will create a market for non-compliant building products (CPR) How does SI 365 impact on PI Insurance Associated documents – Code of Practice and Framework Document for BCAs will need to be reviewed/revised How are competence and compliance proved where the building owner has opted out How will the banks and mortgage lenders respond when the opt-out clause has been triggered

Quo Vadis? Implications of the 2015 Consultation Process SI 365 of 2015 is on the statute book with effect from 1st September Homeowners building single units and extensions may now exercise an opt-out of statutory compliance Accordingly, Assigned Certifiers need not be appointed to such projects Is legal advice replacing technical advice and expertise! BCAs have an increased target of risk-based inspections to achieve The bona fides of the original consultation process have been severely damaged by the position adopted by Ministers Kelly & Coffey……….which must bring into question the viability of future consultation initiatives There is a concern that light touch regulation, a perceived “sin of the past”, may be revisited with this revision of the Building Control Regulations However, to finish on a positive point, at a meeting between industry stakeholders and the DoECLG last week, the Dept. agreed that a new working group on the Building Control Regulations would be initiated

A Rolls Royce Ghost & SI 9 – Compare and Contrast!