Building Control (Amendment) Regulations 2013 Legal issues – compliance and the consumer perspective Engineers Ireland 17 January 2014 Deirdre Ní Fhloinn Reddy Charlton Solicitors

Compliance -BCA role and approach to compliance -Compliance by the Assigned Certifier, Designer and Builder  Enforcement and Civil Liability Consumers  How will the Regulations deliver benefits to consumers? -Will it be any easier for consumers to seek redress for non- compliances?

Compliance – role of BCAs Processing and deciding on applications for Fire Safety Certs and DACs Receiving and validating submissions, but without an obligation to carry out a technical review Conducting inspection, enforcement and prosecution under the 1990 Building Control Act Validation (and possible rejection) of Certificates of Compliance on Completion Maintenance of Register of valid applications, certificates on compliance, enforcement notices, etc.

Monitoring Compliance – draft CoP BCAs to undertake an ‘appropriate level’ of assessment and inspection but responsibility remains with the AC, Builder, designers and building owner BCA has power (but not duty) to check and assess documents lodged with commencement notice BCAs should adopt a ‘formal policy’ for assessment and inspection of work during construction stage based on various criteria At completion stage, main role of BCA is to validate the Cert of compliance on completion and place it on the Register – no technical assessment

Building control authorities - liability - Caselaw on local authority liability for non-compliance: Dutton v. Bognor Regis, Anns v.Merton LBC, Ward v McMaster, Murphy v Brentwood -Statutory limit on BCA liability was introduced in Building Contract Act 1990 in response to caselaw -No shift in Regulations towards duties rather than powers of inspection - s. 6 (4) of the 1990 Act makes clear that BCA has no duty to ensure compliance or to verify that certificates are accurate

Compliance and the Assigned Certifier The assigned certifier must: -Undertake to use reasonable skill, care and diligence to inspect the works and to co-ordinate the work of others -Undertake to certify compliance with the Second Schedule requirements following implementation of the Inspection Plan -Sign Part B of the Certificate of Compliance on Completion, confirming that the building/works is in compliance with the Second Schedule requirements

Compliance and the Designer The Designer must: -Confirm that the plans, ancillary certificates etc. have been prepared to demonstrate compliance with the Second Schedule requirements -Certify that the proposed design is in compliance with the Second Schedule requirements

Compliance and the Builder The Builder must: -Undertake to construct the works in accordance with the plans, calculations, specs, ancillary certs etc. listed in the Commencement Notice -Co-operate with implementation of the I. Plan -‘take all reasonable steps to ensure that I shall’ certify compliance with the Second Schedule requirements following implementation of the Inspection Plan

The Ancillary Certifiers - Assigned Certifier, Designer and Builder will need to rely on ancillary certifiers – does reliance qualify liability? Legal consequences of reliance not clear from the Regs. - if the ancillary certifiers do not provide certificates, can the Assigned Certifier refuse to sign the Completion Certificate, in breach of their undertaking (furnished with Commencement Notice application) to certify compliance? - No form of Ancillary Certificates is included in the Regulations

Compliance – Enforcement and Civil liability BCA may issue enforcement notices under the BCA 1990 and may apply to Court if necessary to enforce Failure to comply with the Regulations is an offence under s.17 of the BCA 1990 – potential for fines, imprisonment, and disqualification from signing certificates s. 21 BCA 1990: A person shall not be entitled to bring any civil proceedings pursuant to this Act by reason only of the contravention of any provision of this Act, or of any order or regulation made thereunder. :does not exclude liability in tort of negligence.

Consumer perspective Do the Regulations create any new rights for consumers? Do the Regulations impose any greater duties than those that apply at law? Minister Hogan : Dec 2013: ‘These new Regulations do not actually change the existing legal responsibility of architects, designers and builders…rather than provide for greater clarity…’ However, change from opinions on substantial compliance to certificates of compliance arguably increases the risk for professionals

Consumer remedies – current legal environment No ‘discoverability’ test in Irish law – claim may be statute barred before defect is found By contrast, UK Latent Damage Act 1986 allows latent defects claims to be brought within 3 years of discovery, with extension of period for subsequent purchasers Only the original purchaser can normally sue under the standard Law Society building contract, which prohibits assignment without the builder’s consent and is signed under hand (6 year limitation)

Consumer remedies – who pays for non-compliance? BCAs will not be liable for cost of non-compliance Professional involved in giving certificates may have an exposure in tort for professional neglience Recovery in tort for building defects is complex and unpredictable The common law steers owners towards building contractors, under their contracts, as primary avenue of redress

Consumers – redress against building contractors Building contractor – homeowner remains the primary relationship for redress Remedy should be in contract but may be difficult to obtain: - claim may be statute barred, - plaintiff must prove breach of contract and damages attributable to breach -the builder may be insolvent -Plaintiff may not be party to the original building contract

Consumers – redress against designers and certifiers Consumers will have no direct contracts with designers/certifiers Tort law may provide a remedy for professional negligence, if there is reliance and an assumption of responsibility Designers and certifiers must complete the prescribed form and cannot amend it to limit their liability (as with the existing opinions on compliance)

Consumers: benefits of the Regulations Development of culture of compliance should result in substantial improvements in building quality Register of competent builders, and restrictions on who may act as Assigned Certifier should provide assurance Access to information on contractors, subcontractors and design teams responsible for non-compliances via the details on Register and requests under the Freedom of Information Act

Consumers: limitations of the Regulations Consumers will still need to go through the Courts for compensation in the event of defects, and may have no contract with the original contractor/team Arguable that consumers will find it easier to pursue the design team and thus the design team’s PI cover, but remedy is very complex and unpredictable No provision for mandatory defects insurance

What can be done to provide remedies for consumers? The primary remedy for consumers should be via the contract by which they acquired the property Remedies in tort are complex and unpredictable In light of the current legal environment and difficulties for plaintiffs in enforcing their legal rights, defects insurance may be the only practical, accessible means of redress for consumers.

Summary Compliance Substantial additional compliance requirements on designers, assigned certifiers, and builders BCAs will not accept liability for failures to comply Consumers -Improved buildings -access to information, particularly (i) identity and details of design team, builder, subcontractors and (ii) copies of drawings, etc. -No new avenue of redress for defects- consumers must avail of existing, complex legal remedies

Disclaimer This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Reddy Charlton for any action taken in reliance on the information contained herein. Any and all information is subject to change.