Re: Re: Building Control (Amendment) Regulations 2012
Mr. Phil Hogan TD
Minister for the Environment Community and Local Government,
Custom House, Dublin 1
RE Draft Building Control (Amendment) Regulations 2012
I refer to the proposed wording to be imposed on certifiers of built work by the subject document
“Notwithstanding the responsibilities of other person/s or firms/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 requirements of the Second Schedule of the Building Regulations”.
This measure as put forward by the Minister for the Environment Phil Hogan with specific regard to certification by professionals is exactly the wrong strategy to achieve compliance in the built work. This will make a difficult situation worse.
I submit that the following is a reasonable means of achieving widespread compliance.
1. Only a competent person should issue opinions of compliance with Building Regulations in relation to buildings. In this we are all agreed and I applaud steps taken by the Minister to make this customary practice. However issuing opinions must rest on adequate levels of inspection and reflect proportionate liability for the elements being certified. Certification in law cannot and at the moment does not imply ultimately liability rests with one person. The Ministers Bill fails to place an onus on persons commissioning or procuring a building to retain professionals at all stages. Worse, there is no role for the local authority. The former makes it unworkable. The latter is mere convenience for local authorities. Neither is good for the public in terms of either the giving of assurances or the quality of the built work.
2. For buildings designed for people to carry out their various activities (as opposed to structures or automated manufacturing facilities) the architect is normally the leader of the design team, from whose designs flows the basis for the work of others. IN some specialist buildings where processes or functions are the focus of the accommodation as opposed to people, the Engineer is the head of the design team. The worked example below assumes the architect is the design team leader as is normal for must buildings built in the State.
3. The correct certification of buildings arises from (i) the design and (ii) the built work being compliant with the requirements of the building regulations. The architect’s Opinions are used as the basis for the booklet of certificates. Competent design professionals certify the design. Competent contractors, sub-contractors and specialist suppliers certify the built work. Their several certificates form an unbroken quilt of responsibility and liability under the auspices of the architect’s Opinion and are listed as Schedule (A) Assurances therein.
4. Each specialist professional takes responsibility for those parts of the building designed by his/her firm. Services are designed by an M&E, structure by a Structural and Civil Engineer. There may be specialist Fire Engineering and External cladding solutions that also involve elements of design co-ordinated by the architect, who does not design or specify them in detail. Each professional involved in design should issue Certificates stating that his/her element of design complies with the relevant building regulation(s) affecting that element. The architect co-ordinates the design and issues an overall Certificate [The Opinion] which confirms overall compliance.
5. Each specialist sub-contractor takes responsibility for those parts of the building built or installed by his/her firm. Services are installed by plumbers, electricians, lift suppliers, heating suppliers, sprinkler system suppliers, lighting suppliers, Fire Detection and Alarm System suppliers, security system suppliers etc. There may be specialist Fire Engineering and External cladding solutions. All of these specialist sub-contractors are supported by attendances provided by the main contractor, who co-ordinates their work with his own but, who does not build or specify them in detail. Each Sub-contractor involved in design should issue Certificates stating that his/her element of work complies with the relevant building regulation(s) affecting that element. The Main Contractor co-ordinates the built work and issues an overall Certificate that confirms compliance of work not covered by sub-contractors or suppliers certificated.
6. The architect issues the Opinion accompanied by the Health and Safety File and supporting documentation in respect of the built work such as guarantees, commissioning certificates and installation manuals.
The benefit of this method is that the people responsible for each element issue their own certificate and are held liable to that extent. Each company or firm therefore knows that it is liable in law for doing its work competently, whether it is design work or building work. This keeps them on their toes and each monitors the others. The only element of design that is not covered by a competent Design Professional or Contractor is work done by artisans or craftsmen.
The RIAI Yellow and Blue forms of contract (With and Without Quantities respectively) reflect this system of building production and accommodate it. Other forms such the Short Forms, GDLA, FIDIC, GCCC and JCT Contracts can also be used depending on the nature of the building and programme.
We have recently seen a Register introduced for Building Professionals to offer increased assurance to the public – this is to be welcomed.
However, there is no similar register for Main Contractors – anyone can claim to be a contractor. Given the over-arching responsibility of the main contactor in the building programme, this needs to be addressed.
Worse, there is no obligation on a developer to retain competent design professionals to design the building or competent contractors to build it.
Finally there is no obligation on local authorities to inspect all developments or approve all proposed details.
Instead of Minister Hogan creating registers for contractors and making it law to retain adequate professional oversight at all stages of a building project, enumerating the responsibilities and liabilities of each design professional and contractor to ensure that they all play their part, he has done the opposite. The responsibility rests solely on the architect (or engineer) for all other professionals and all the contractors and suppliers. No longer will each look to their own and ensure their work is competently done. The architect (or engineer) carries the can.
This will lead to serious injustice, especially where there is no obligation for the developer and builder to accept the architect’s instructions or even to appoint a competent and adequate team of professionals to assist him and competent contractors to build the building.
For example, ten years ago a pre-cast concrete stairs collapsed in a multi-story building under construction injuring workmen. As this appeared to be a structural failure, the trial centred on the structural engineers role. It was held that he had designed the stairs and its support system competently. The focus then shifted to the sub-contractor who supplied and fitted the stairs. It was found that the stairs was fixed using an inadequate number of bolts and that those used were also too short. The engineering firm who supplied the stairs was found liable for the collapse. The engineer was not.
The proposed bill would now seek to place this entire burden on the architect, which is clearly not appropriate since a specialist, the engineer, designs the element. Where instead the engineer is held liable, he now has no defense in court under the proposed Bill, which would be a travesty of justice and denies well-established precedent. The proposed Bill will be counter-productive since no-one except the certifier carries legal responsibility. The rest will duck and weave.
Responsibility and liability should not rest solely with the private sector. Oversight must be maintained by the relevant local authority for all jobs being carried out within its area of control. This involvement should start prior to commencement of the built work to insure that the ground is properly surveyed and assessed and resources are pooled to identify and address all potential sources of hazard. It should continue with unannounced spot checks during the job in tandem with the Health and Safety Authority and continue after completion to ensure the building is fully commissioned and completed. This is no longer self-certification, but co-certification.
It is clear that the present Bill is not drafted to give the level of assurance required. In fact by placing the entire burden of responsibility on one person it erodes what levels of assurance exist at present.
What should occur is that all persons or firms should continue to be responsible for their areas of expertise and competence. Persons commissioning building should be required by law to employ competent registered contractors to carry out the works and to retain competent design professionals to design, inspect and certify them before during and after completion. Local authorities must ensure that the law is being complied with and supply information in their possession regarding both environmental conditions and services. Only by this comprehensive approach can good governance be achieved and quality in the built work be attained.
Is mise le meas,
Michael O’Neill for
O’Neill Quigley & Associates
Planning & Design Consultants