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BCAR S.I.9, What's another year? Construction Magazine Sunday, 1 February 2015

S.I. No. 9 of 2014-The Building Control (Amendment) Regulation . As year ago this was all but upon us. Affecting all projects irrespective of size it ’s no secret that there hasn’t exactly been widespread approval We spoke to a cross-section of professionals to get their opinions and reactions.

For - “The new regime of building control does present challenges for all the parties to the project, but provided an ethical, professional approach is taken, none of the challenges should be insurmountable” - Cormac Bradley, Engineers Ireland

Against - “The construction sector faces turmoil in which almost everything about building regulations will be decided in the courts, bringing more uncertainty, cost, delay and frustration" - Michael Collins, former President of the RIAI

Implementation of the new regulations is now settling down,” says Hubert Fitzpatrick, Director of Housing and Planning with the CIF. Fitzpatrick notes that in excess of 5,000 commencement notices have been lodged on the new Building Control Management System which “is being streamlined” on an ongoing basis. “While there is a cost for the builder in complying with the new oversight regime, the revised process will give much greater levels of confidence to the purchase /occupier of newly constructed properties that the requirements of the building regulations have been met,” he says.

Experience over the past 12 months, says Fitzpatrick, has highlighted the necessity for all builders, main builders and subcontractors/specialists to familiarise themselves with the nature of certification now sought before commencement, during and after completion of building works. “This is bringing about a greater discipline in the ordering of construction materials/supplies, ensuring that the correct materials/supplies are delivered to site, how the construction takes place on site, and the requirement to have proper and appropriate construction drawings and specifications supplied prior to starting construction works,” he adds. “The requirement of the assigned certifier to inspect works and certify compliance is critical to the level of public confidence that now applies to construction of new buildings.” The industry has geared itself up for the new obligations, and is working proactively with the professional teams in ensuring that the new procedures are being adhered to, says Fitzpatrick. “The Federation continues to supply clarification to its members countrywide in relation to queries pertaining to the new system.” The ongoing  requirement for training of builders and contractors in the building regulations area will continue to be addressed by the Federation, and updates are given to members on an ongoing basis. It is understood that a consultation process will take place in relation to the operation of the revised building control procedures. “The Federation will participate in this process as soon as it commences,” he says.

Cormac Bradley represented Engineers Ireland in the consultation process. He says: “Engineers Ireland welcomed the announcement that the then Minister of the Environment, Phil Hogan made with respect to reviewing the Building Control Regulations and was pleased that the proposed consultation process would involve all the sectors players as well as affording the general public an opportunity to contribute. “In recent years Engineers Ireland has been anxious to develop closer working ties with Government on issues that are pertinent to our membership. We saw this as a manifestation of our efforts in this regard.” From an internal perspective, Engineers Ireland was keen to see the role of the Chartered Engineer (C.Eng.) Promoted within the engineering fraternity. “We saw the BC(A)R initiative as complementing this internal ambition,” says Bradley. Engineers Ireland has been very committed to the initial consultation process and the working groups set up to develop the S.I., the associated Code of practice and the complementary ancillary certificates. It has hosted a number of formal CPD sessions to advise and educate practitioners in complying with the new regulations and most of the organisations regions have held evening sessions on the subject. “We accept that when the first working group was convened, the resources that would allow a more robust system of building control to be put in place were not available and the documentation that has been developed since that first working group meeting is as a consequence of this restriction,” says Bradley. “However, rather than decide that nothing could be done, Engineers Ireland along with its contemporaries, ACEI, CIF, RIAI, SCSI and the officials of the CCMA, Local Authorities and the DoECLG, committed themselves to putting in place the system that took effect on 1st March 2014. “Many have argued that an independent system of inspection should have been put in place but when this was not available, the alternative of a self-policing system was the next best option. “It is Engineers Ireland’s belief that selfpolicing, combined with the compliance with a Code of Ethics, should ensure that professionals acting in accordance with best and established practice, developed over many years, operating within their individual areas of expertise and competence should not be exposed to any greater risk under the BC(A)R regime of building control of post- 1st March 2014 than was the case before that date. “There is no doubt that the new regulations place an enhanced emphasis on proper communication and interaction with all the project parties to a building development - building owner, builder, assigned certifier, design certifier and ancillary certifiers (design and inspection) “But the tools by which this is achieved are no different post implementation, though the documentation that is required to confirm that it has happened is much more important than was the case before. “It now has to be uploaded to the Building Control Management System (BCMS) to show compliance with undertakings given when the commence notice was lodged. “The new regime of building control does present challenges for all the parties to the project, but provided an ethical, professional approach is taken, none of the challenges should be insurmountable. “The critics of the system have suggested that the assigned certifier will be left as the “last man standing” answerable for all the flaws that others should be answerable for. “This is a fundamental misunderstanding of the system. The assigned certifier is not a ‘one man act’ independent of all the other project parties, quite the opposite, he is very reliant on all the other parties. “With a competent system of documentation in place, the assigned certifier should be able to guide any investigation of defective work on the basis of being able to trace the responsibility of those who had a hand in the design and construction of the failed element.” Kevin Sheridan is a council member of the Society of Chartered Surveyors Ireland and also of the building surveying professional lgroup. He notes that, “while much has been written about the legacy issues negatively impacting on public confidence and reputation of the industry”, the regulations will go a long way to restore confidence in a more professional and “joined up” system and protect our vital infrastructure and Heritage. “The new regulations embrace a quality control and quality assurance system incorporating a more transparent and up-front notification, inspection and certification process, where all involved in the process are now required to demonstrate compliance through a more considered and transparent system,” Sheridan says. “The system requires more thought and clarity to be provided at the outset to insure critical inspection and sign-off by industry professionals. “It also requires that competent builders such as those covered by the CIRI register, will soon become a mandatory registration requirement.” While its introduction was not universally welcomed, as some saw this as an imposition entailing an unnecessary control and a cost burden, the Society of Chartered Surveyors Ireland (SCSI) welcomes the positive aspects, “which require a more transparent and rigorous process requiring that only competent key players take ownership for providing robust and fit-for-purpose buildings”.

Robin Mandal, President of RIAI says while BC(A)R has an important role, consumer redress can really only be provided by an effective system of latent defects insurance. “The commitments in construction 2020 to this is welcomed,” he says, “along with government, the RIAI is working towards this end. “The commitment in Construction 2020 for the heads of legislation to be prepared for the registration of builders is crucial to protecting the consumer,” says Mandal. The commitment by the Department to review, with all of the stakeholders, the operation of S.I.9 in Spring 2015 is welcome,” he adds. “Any new system needs review. There are operational transition difficulties, which need to be addressed, in addition to possible new initiatives. “Perhaps a broadening of the stakeholders would be considered.” The RIAI has produced considerable documentation for its members and runs a number of CPD events to familiarise members with the new regulations. It is also preparing a Code of Practice for Architects working under the new regulations. “While there is no specific prevention for self-building in the regulations, the RIAI considers this issue should be addressed in consultation with department officials and possibly the housing agency” says Mandal. Crucially, the RIAI considers that  building control authorities should have the legal capacity to issue immediate “cease works” notices. The RIAI supports “adequate and appropriate inspection by building control authorities and the resources that will be required for that”. Says Mandal: “We need a public information campaign by the Department which lets the public know what the regulations mean.”

The view of Shane McCloud of the Irish Association of Self Builders (IAOSB) is that  S.1.9 has brought “extraordinary changes to the construction sector, many of which are unintended and negative”. “Acknowledged widely now as a political solution to a practical problem, BC(A)R S1.9 has brought us legal uncertainty, little consumer benefit, additional red tape at a huge cost,” says McCloud. More than five senior councils have issued differing advice on S.I.9, states McCloud. “They all agree that vague wording will eventually be determined in the courts hardly a resounding vote of confidence in the regulation.” “Self building has fallen off a cliff,” is the stark-sounding message from IAOSB. “The effects of S.I.9 have also been felt in government capital projects. How many hospital projects, community centres or convalescent homes have been delayed due to S.I.9? Self builders and consumers who commission once-off houses need to be made exempt from the provisions S.I.9, says McCloud. “Once off houses would still be subject to the regulations; they just would not need the additional services of design or assigned certifiers.

Michael Collins, former President of the RIAI says the Building Control Amendment Regulations introduced “extended and cumbersome self certification by designers, main and subcontractors to replace the failed self certification system that preceded it. “The same as the old system however, the new one is set to fail in protecting the consumer, particularly in speculative  residential development,” he says. “As we have seen in other sectors of society, a system which relies on people certifying their own work cannot and will not work. “Apart from this fundamental flaw, the legislation is badly drafted,” Collins says. “Basic issues related to extensions of less than 40 sqm, the legal position of self-builders and technologists, liability of assigned certifiers, the absence of any system of rectification of non-compliant buildings, the lack of co-ordination with standard forms of contracts, are only a part of the picture. “The negative impact on construction starts is not being broadcast but is real.” “Publicly-funded school projects are stalled. Housing costs will continue to rise as shortages tighten. “Other problems will emerge. The construction sector faces turmoil in which almost everything about building regulations will be decided in the courts, bringing more uncertainty, cost, delay and frustration. “Contracts and work practices which have taken decades to evolve are set at naught. “The solution is a system of independent inspection as works successfully in England, Wales and Northern Ireland.” The new rules have impacted on suppliers to the industry too. “Overall, having these new regulations in place and having the necessary statutory stamp on a building project is a good thing for the industry and, ultimately, the client,” says Sean Moran of HPC Group which operates a number of builders’ providers outlets.“However,” says Moran, “complying with the regulations has created its own difficulties for suppliers to the trade. “Initially there was considerable pressure on the sales departments in the various builders’ suppliers and some confusion in responding to requests from builders to provide evidence that all products supplied complied with the new building regulations. “Builders and the various trades persons require documentary proof that all products supplied are fit for their intended use, bear CE marking and comply with the various European and Irish standards. “Providing the requisite information on all products has placed quite an administrative burden on builders’ merchants. “While the relevant information has been generally available, gathering and collating all the documentation is a time consuming process and requires all manufacturers and suppliers to provide relevant product information/certification etc. to merchants to be passed on to clients. ‘“Declaration of Performance’ is now one of the most commonly heard phrases in the sales offices of all our HPC Group branches. “We provide a Declaration of Performance, covering all aspects of the regulations for all products supplied. We have built a database of all products which can be forwarded to our customers on request.”

Meanwhile,Meanwhile, Gerry Fallon b rand development manager at Expert Hardware says there has been “a mixed reaction” from their customer base. “While everyone agrees that the new regulations will play an important role in the pursuit of more robust building control, the increased number of mandatory certificates now required and extra financial burden, falls directly on those intending to build,” says Gerry. “For a typical 200sqm, the estimated additional workload just to an architect or engineer who is acting as an assigned certifier could be 100 additional hours approximately, which would typically cost an extra €5,000. “These levies and other associated compliance costs which builders who are registered with the Building Control Authority now have to undertake, are placing more obstacles in the way of those intending to start new builds or extensions over the 40sqm threshold. “These new regulations in turn could also slow down the rate of growth in the construction sector which would affect the hardware industry which has had a very difficult few years since the downturn.”

Finally, it’s over to the constructors and Dominic Doheny, Senior Vice President, CIF, who stresses that all that has actually happened here is that the oversight for the construction process, including supervision and certification, has changed. “It means that there is certification from registered professionals confirming that what was designed is built in accordance with the building regulations,” says Doheny. “I would think that is a good thing and addresses consumer/ end user concerns that the statutory building regulations requirements have been complied with. “I don’t necessarily agree with the cost imposed on the client for delivery of these regulations. Doheny adds: “The new registration process for builders, Construction Industry Register Ireland, has in conjunction with the Department of the Environment Community and Local Government, been established by the CIF to provide a registration process for competent builders. “This is to be put on a statutory footing in 2015. Members of the newly established register of builders will undertake continuing professional development to ensure that their teams are trained and aware of new building requirements and processes.Many construction companies are already providing this training to their construction teams,” adds Doheny. “The CIF, as part of its membership package, in conjunction with CIRI will be rolling out courses to make sure all builders from the small one-off guys up will understand and know what their obligations are. It will dovetail into the system as neatly as possible.” Says Doheny: “The legal responsibility for builders to build in accordance with the building regulations always applied and were being implemented by the vast majority of builders. “However, the new regulations will make it difficult for the ‘rogue builder’ to have a place in the reputable and professional construction industry that we all strive to achieve and maintain.”

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