Just as members of the Construction Industry and practitioners were preparing for the Building Control (Amendment) Regulations 2013 (the "2013 Regulations") to become operative this March, the Building Control (Amendment) Regulations 2014 (the "2014 Regulations") were signed into law! Replacing the 2013 Regulations, the 2014 Regulations are the second attempt by the legislature to introduce a new regime for compliance with Building Regulations.
The 2014 Regulations refine and clarify the changes introduced by the 2013 Regulations and, it appears, address some of the more controversial elements of the earlier regulations. The 2014 Regulations will still become operative on 1 March 2014 and it is imperative for affected parties (including building owners) to be aware of their new obligations.
The Key Feature of the 2014 Regulations
The 2014 Regulations retain the same structure as the 2013 Regulations by introducing a new form of commencement notice, together with the introduction of three new types of mandatory certificates, in prescribed form;
- Certificate of Compliance (Design) (the "Design Certificate")
- Certificate of Compliance (Undertaking by Assigned Certifier) / Certificate of Compliance (Undertaking by Builder) (together, the "Undertakings") and
- Certificate of Compliance on Completion (the "Completion Certificate").
The 2014 Regulations require a continued focus on compliance with Building Regulations, from design stage to completion. Prior to the works commencing, the design of the works must be certified as complying with Building Regulations by the execution of the Design Certificate by the "Design Certifier". The building owner will also nominate at commencement stage (through notices in prescribed form) an "Assigned Certifier" and a "Builder". The "Assigned Certifier" and "Builder" will be tasked with confirming that the completed works comply with Building Regulations by executing the Completion Certificate and must also formally undertake to carry out this task at commencement stage.
The 2014 Regulations are intended to work in tandem with a "Code of Practice for Inspecting and Certifying Buildings and Works" which will inform the Assigned Certifier, Builder, Design Certifier and other parties, how to manage their respective roles including the preparation of an inspection plan, carrying out inspections and ultimately certifying the works. The final approved version of the Code was made available at the end of the first week in February 2014.
The Commencement Notice
While the requirement to submit a Commencement Notice is not new, Article 9 now requires that a Commencement Notice in prescribed form be submitted with the following documentation:
- such plans, calculations, specifications and particulars as are necessary to outline how the proposed works or building will comply with the requirements of the Second Schedule of the Building Regulations, including general arrangement drawings and a schedule of such plans, etc as are currently designed or as are to be prepared at a later date;
- the Design Certificate;
- the Notice of Assignment of Person to Inspect and Certify Works (Assigned Certifier) and Notice of Assignment of Builder;
- The Undertakings (both of the Assigned Certifier and Builder);
In addition, an online assessment regarding the proposed approach to compliance with the Regulations must be completed and a Preliminary Inspection Plan prepared by the Assigned Certifier submitted.
The Commencement Notice can now be submitted electronically on the online "Building Control Management System" or by hard copy. If documents are submitted in hard copy, the Building Control Authority will have the option of charging an administration fee.
The 2014 Regulations also make a number of amendments to the "7 Day Notice". This is the form of Notice which is to be submitted where it is proposed to commence work before the grant of a fire safety certificate. In this regard, the 7 Day Notice essentially replaces the Commencement Notice and must be accompanied by the application for fire safety certification and the documentation supporting the fire safety application, as opposed to the fire safety certificate. The form of 7 Day Notice is set out in the third schedule to the 2014 Regulations, and must be accompanied by similar documentation, Notices and Certificates as required with a Commencement Notice.
It is clear from the above that the requirements are detailed, and parties involved in the building process will need to be focussed on compliance with these requirements from the outset.
The Design Certificate
This Certificate, to be completed by the Design Certifier (a registered architect, builder surveyor or chartered engineer) must be submitted with the Commencement Notice, and requires confirmation that the plans etc., included with the Commencement Notice demonstrate compliance with the applicable requirements of the Building Regulations, with the designer certifying that "having exercised reasonable skill care and diligence, that, having regard to the plans, calculations...which have been prepared by me and others and having relied on ancillary certificates and particulars...the proposed design for the building or works is in compliance with the requirements of the Second Schedule to the Building Regulations".
The reference to "ancillary certificates" is notable, and reflects the fact that, owing to the different design disciplines that may have input into the overall design of a building, one building designer could not stand over the design without relying on others. While details in respect of the role of the ancillary certifier are absent from the main body of the 2014 Regulations, further guidance is contained in the Code of Practice.
Inspection and Certification of the Works – Assigned Certifier and Builder
The Assigned Certifier must also be a registered architect, building surveyor or chartered engineer and will be required to provide an undertaking, submitted with the Commencement Notice, to inter alia, "use reasonable skill, care and diligence, to inspect the building or works and to coordinate the inspection works of others and to certify following the implementation of the inspection plan by myself and others, for compliance with the requirements of the Second Schedule to the Building Regulations".
The same person must also execute Part B of the Completion Certificate confirming that "the inspection plan drawn up having regard to the Code of Practice...has been undertaken by the under-signed having exercised reasonable skill, care and diligence, and by others nominated therein, as appropriate, on the basis that all have exercised reasonable skill, care and diligence in certifying their work in the ancillary certificates scheduled...Based on the above, and relying on the ancillary certificates scheduled, I now certify, having exercised reasonable skill, care and diligence, that the building or works is in compliance..."
The Builder will also be required to provide an undertaking, submitted with the Commencement Notice, identifying the works which he has been commissioned to undertake and confirming his own competence and those employed and engaged by him, to undertake such works. Further the Builder must also undertake to construct the works in accordance with the plans etc., submitted (or subsequently issued to him) and to cooperate with the inspections set out in the inspection plan prepared by the Assigned Certifier. The Builder must also execute Part A of the Completion Certificate certifying that, having exercised reasonable skill, care and diligence that the works as completed have been constructed in accordance with the design documents submitted and reliant on this, the works are in compliance with Building Regulations.
The Undertaking and the Completion Certificate are specifically required to be signed by a "Principal or Director of a building company only" and both documents provide an entry for the Builder's "Construction Industry Register Ireland registration number". A new registry of builders has been set up in this regard (www.ciri.ie). The registry is voluntary at present but may become mandatory in the near future.
As outlined above, the Completion Certificate, executed by both the Assigned Certifier and the Builder, must be submitted to the Building Control Authority. The Completion Certificate must be accompanied by (i) such plans etc., as are required to outline how the completed works differ from the plans submitted at commencement stage, (ii) such plans as are required to outline how the completed works comply with the Building Regulations and (iii) the Inspection Plan implemented by the Assigned Certifier.
Works or buildings cannot be "opened, occupied or used" until the relevant particulars of the Certificate of Compliance on Completion are entered on a statutory register to be kept by the Building Control Authority. However, the 2014 Regulations provide that the Completion Certificate may refer to "works, buildings, including areas within a building, or developments, including phases thereof...", indicating that works can be completed in stages if necessary.
The road to the 2014 Regulations has been a bumpy one, but on the eve of the effective date, it is imperative that parties start engaging with these new requirements and understanding their implications. The intention of the 2014 Regulations is to focus all parties on compliance with Building Regulations, from the inception of the works, by requiring the development of an inspection plan at the earliest stages and having all parties (including builders) formally acknowledge their respective roles, from day one.
Being ready for the effective date will mean different things for different players in the industry. Building owners, for example, will need to consider how and when to make the new appointments to allow time to deliver the Commencement Notice and all its constituent parts. Those intending to act as certifiers (including ancillary certifiers) or builders must consider how these roles need to be carried out to ensure a smooth inspection process that is flexible enough to adapt to changes during the life of a project but one that follows the Code of Practice and allows the Completion Certificate to be signed in confidence. Regardless of the role taken, parties need to ensure that they are not left behind.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.