Response from Mr Martin Vaughan, DECLG regarding S.I.9 - 13th March 2014
Dear Mr McCloud,
I wish to reply to your email of 26 February 2014 and 10 March 2014.
Firstly, I am happy to forward a PDF copy of Information Note issued on 26 February 2014 and now on headed paper as requested.
In relation to your understanding of the reply to Parliamentary Question No. 544 of 28 January 2014, I can confirm that your understanding accords with the Department’s position that a Self-Builder can nominate them-self as the Builder and sign the undertaking and the Certificate of Compliance on Completion (Part A). In nominating themselves as Builder and signing the Undertaking by the Builder, they are declaring that they are competent and undertaking to follow the certified design and to employ/engage competent persons, etc. and anyone signing these forms must of course be faithful to the undertakings so given.
In relation to the signature by a Self-Builder of the Undertaking by the Builder or Certificate of Compliance on Completion (Part A), the Department does not foresee a difficulty in a Self-Builder signing this form where they are clearly not a company.
To put things in their proper context, SI No. 9 of 2014 in introducing certificates of compliance must support and preserve the statutory responsibilities (on owners, designers and builders) that are already set out under the Building Control Act 1990 (the Act of 1990). The chain of responsibility begins with the owner. They must now sign the Commencement Notice and the notices of assignment of the Builder and of the Assigned Certifier (for present purposes we are only concerned with the Builder).
The Notice of Assignment of Builder requires the owner to declare they are satisfied that the assigned person is competent to undertake the works. This is the essential point - that the owner acts with responsibility. In practice this assigned person will be a sole trader, a company or a Self-Builder and their status is irrelevant once competence is assured. The Building Control Authority has no role in checking or verifying the builder's competence – it is the owner’s responsibility. If the building control authority does have concerns they have separate powers of inspection and enforcement under the Act of 1990 to deal with the situation as appropriate. The only limitation put on the assignment is that the owner satisfies themselves that the person assigned is competent to undertake the works. This Notice of Assignment is signed by the building owner and no one other than the building owner can make this assignment. You will note from the form that if the assigned person changes the building owner is legally obliged to inform the local authority and to assign and notify a new builder. The importance of this is that assigned builder (and no one other than the assigned Builder) can sign Part A of the relevant Certificate of Compliance on Completion.
The Assigned Builder is then required to sign their form of undertaking. The form must be signed by the person notified to the Building Control Authority as the Builder, thus preserving the chain of responsibility. In effect the owner controls who signs this form by making the notice of assignment. Where the person assigned is a firm, the signature must be signed by a Principal or Director i.e. it should not be signed by an employee. This qualification of the signatory is only necessary in the case of a company. Where a Self-Builder is acting on his or her own behalf, there are no agents or intermediaries involved, and the potential for confusion over legal responsibility does not therefore arise.
In relation to the signature by a Self-Builder of the Certificate of Compliance on Completion, the Department’s view would be as outlined above in relation to the form of undertaking. Part A of the Certificate of Compliance on Completion must be signed by the person assigned and notified by the owner at commencement. Again it is only where the assigned Builder is a corporate entity that the signature must be signed by a Principal or Director i.e. not by an employee.
From a building control perspective, if this certificate is signed by a person other that the person already assigned and notified, then a problem will arise in relation to validating and registering the certificate.
On this aspect of the matter you also asked why the signature line could not refer to the “building owner” – in this regard it is important to understand that the undertaking by the Builder and the Certificate of Compliance on Completion deal with the responsibilities of the Builder (not the owner) and it is important therefore that persons signing these forms know and understand that they are dealing with their responsibilities as Builder for the purposes of these forms.
In relation to the “Code of Practice for Inspecting and Certifying Buildings and Works” and the guidance in relation to use of competent persons, in your situation it is the Self-Builder who must be satisfy as to the competence of any person they engage for a particular task.
In relation to the Minister’s public comments on the likely cost of engaging an assigned certifier I attach for information a statement on the impact of the regulations which may be helpful in outlining the Department’ position in this regard.
I trust the above should finally clarify these matters for you.
Architecture/Building Standards Section
Department of the Environment, Community and Local Government