The Building Control (Amendment Regulations) 2012
Question: Would any rational architect sign up to the following on completion of a construction project?
"I certify that I have inspected the works... and the
building or works as completed is neither defective nor contravenes
any requirement of ... the Building Regulations...
having already provided an undertaking at commencement that
"Notwithstanding the responsibilities of other person/s
or firms in relation to the works, I accept responsibility and
legal liability for the inspection of all works as necessary to
ensure that they are neither defective nor contravene any
requirements of ...the Building Regulations."
Answer: No. Certainly no architect hoping to rely on professional indemnity cover.
Yet this is what architects will be asked to sign up to if the
draft Building Control (Amendment) Regulations 2012 (the Amendment
Regulations) are signed in to law. And worse, if an architect says
this and gets it wrong criminal sanctions, including a custodial
sentence, will apply.
The Amendment Regulations were introduced to tackle the issues
surrounding the admittedly unsatisfactory practice which has
developed in Ireland where professionals issue highly qualified
opinions on compliance and those opinions are the only evidence of
compliance of works with building legislation. However, what is
proposed is to replace those opinions with certificates which, as
drafted, no architect could possibly provide and no insurance
company would back. The following is what is currently
proposed:
Certificates will be required from architects at three stages (1)
Commencement (2) 7 day Notice and (3) Completion, as follows:
(1) Commencement
"I confirm that the plans, specifications, calculations
and particulars included in the... Commencement Notice ... have
been prepared to demonstrate compliance with .... the Building
Regulations"
(2) 7 day notice
"I certify ... that the proposed design for the works or building is neither defective nor contravenes any requirements of ... the Building Regulations"
(3) Completion
"I confirm that I am the person assigned by the owner
of the relevant building works to inspect and certify the works and
I now certify that I have inspected the works ... and that the
building or works as completed is neither defective nor contravenes
any ... of the Building Regulations."
The above certificates will be provided in circumstances where the
architect has given an undertaking at commencement
of the project as follows:
"Notwithstanding the responsibilities of other person/s
or firm/s in relation to the works, I accept responsibility
and legal liability for the
inspection of all works as necessary to ensure that they are
neither defective nor contravene any ...of the Building
Regulations"
In the event that works are certified and found not to be in
compliance with building legislation the following criminal
penalties will apply:
- On summary conviction – a fine of up to €5,000 and/ or six months imprisonment
- On indictment (more serious offences) – a fine of up to €50,000 and/or two years imprisonmen
And in case a firm of architects would seek to take comfort in
the fact that it is an incorporated entity, the legislation goes on
to provide that a director, manager or secretary of a body
corporate found to have committed the offence may also be found
guilty of the offence.
In addition, the court may disqualify any person convicted of an
offence from providing any further certificates for a period of two
years (if a summary conviction) or ten years (if convicted on
indictment).
As the late and highly respected David Keane explained, the reason
for replacing certificates with opinions in Ireland in the
1990's was that "since the issue of a certificate by
anyone is a statement that they are certain of the facts stated and
as a large measure of personal judgment could be involved it was
considered appropriate to alter the title of the document to an
Opinion on Compliance. The opinions were generally quantified by
use of the phrase "substantial compliance" to indicate
that exact compliance was a rare event..." Whilst things
have moved on in the construction industry since Mr Keane wrote
these words, one would think "exact compliance" is as
rare as it ever was yet this proposed legislation expects
architects to certify "exact compliance" and risk going
to jail if they are wrong.
To finish on a more positive note, the consultation period for the
Amendment Regulations ended on 24 May and by all accounts a huge
number of submissions were received from the industry and are being
considered. The Amendment Regulations are expected to be signed
into law shortly and one hopes that the submissions of the industry
have been taken on board.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.