The following letter was received from Mr Martin Vaughan (DOECLG) on Thursday, May 1st, 2014..
Dear Ms Gallagher,
I refer to your several emails and in particular those of 16 December 2013, 28 March 2014 and 1 April 2014 to Minister Hogan and myself regarding SI No. 9 of 2014 and I now wish to reply to your detailed questions as comprehensively as possible.
At the outset I wish to apologise unreservedly for not replying sooner to your queries.
I have attempted to deal below with the various concerns you raise but if anything has not been dealt with to your satisfaction I will be glad to oblige further.
Implications of SI No. 9 of 2014 for Self-Build/direct Labour
It is incorrect to assert that self-build is banned in Ireland.
This Department issued an Information Note on Building Control (Amendment) Regulations 2014 (SI No. 9 of 2014) and the Self-Build Sector on 26 February 2014. The Information Note clearly states that the new regulations do not prevent self-build or use of direct labour or any person building on their own land. The note goes on to explain how the regulatory requirements are intended to apply from a self-build perspective.
I understand that you have seen and read my detailed response to the Irish Association of Self-Builders confirming that self-build and building by direct labour continue to be possible since the introduction of SI No. 9 of 2014. There is little more I can add to what has been said already. All I can say is that as far the Minister and the Department is concerned self build and building by direct labour continue to be perfectly legal in Ireland once the self-builder and labourers are competent to carry out the works they undertake.
The point of SI No. 9 of 2014 is to require competence and professionalism in design and construction and introduce a level of accountability on owners, designers and builders in relation to their obligations under the Building Control Act 1990 to design and build in compliance with the building regulations. It is right and fair to expect that these obligations apply in the self-build sector as in all other sectors there is no reason why these obligations cannot be fulfilled in a self build scenario.
Assertion that the Minister and the Department have misled the nation
The Department totally rejects any assertion that the Minister and the Department have been in any way misleading in relation to SI No. 9 of 2014.
The Minister and the Department has at all times communicated clearly to the RIAI, other industry stakeholders and the general public in relation to reform of the arrangement for the control of building control activity and the timing of same. All key aspects of the ongoing debate are a matter of public record.
Public register of qualified Tradesmen vs CIRI register
At present there is no requirement that builders be on the register of tradesmen or on the new CIRI register.
The statutory requirement is for the owner to assign a builder whom they are satisfied will be competent to undertake the works.
An owner may therefore, as you suggest, choose a builder from a register of qualified tradesmen provided the owner is satisfied that the builder is competent to undertake the works.
CIRI is a voluntary register at present but the Government has signalled its commitment to placing the register on a statutory footing by 2015. No legislative proposals have been developed in this regard to date and it is intended that the head of bill for the required legislation will be presented to Government for decision by the end of the current year.
CIRI does not provide for registration of self-builders.
It is not intended that the legislation placing CIRI on a statutory footing will restrict or prevent activity in the self-build sector.
Why was CIRI not made statutory before implementation of SI No. 9 of 2014?
The legal obligation on owners to ensure that buildings they commission are designed and constructed in accordance with the Building Regulations arises under the Building Control Act 1990. It is not a new obligation.
Although initially a voluntary register, CIRI will be a useful aid to owners in appointing competent persons. For persons who have no background in construction it is helpful if there is at least one recognised way in which they can be seen to satisfy their obligations.
However it is not the only means by which owners can satisfy themselves as to the competence of a builder.
In relation to your lack of capacity to double your budget to employ a main building contractor, an Assigned Certifier and Project Supervisor
The new building regulations do not require the employment of a main building contractor or a project supervisor.
The regulations do require the appointment of an Assigned Certifier and may require some extra investment in relation to the design of the home.
They do not prevent self-build or direct labour arrangements.
The performance standards or technical requirements which the proposed home must meet are unchanged.
It is unclear as to why it is felt necessary to double the budget.
SI No. 105 of 2014
SI 105 of 2014 applies to a limited number of buildings in the health and education sectors in very specific circumstances. It relates only where difficulties arise in relation to the appointment of an assigned certified due to existing contractual or procurement arrangements which and would result in prohibitive expense or delays in relation to such projects. In order for a project to proceed under SI No 105 of 2014, the commissioning authority must demonstrate to an oversight group that the existing inspection and certification arrangements will achieve an equivalent outcome as would be achieved by an assigned certifier. In all other respects the requirements of SI No. 9 of 2014 (e.g. design certified by a registered professional, lodgement of inspection plans, compliance documentation and certificates of compliance, validation and registration on the building control register) will apply.
SI 105 of 2014 is not therefore in any sense a derogation or an exemption from the requirement to demonstrate full compliance with the requirements of the building regulations.
SI 9 of 2014 fails to protect consumers
SI 9 of 2014 is part of a wider package of building control reforms which taken together substantially improve the protection afforded to consumers in the construction sector.
The Building Control Act 2007 provided for the registration of construction professionals. This protects consumers in a number of ways (a) it prevents unqualified persons passing themselves off as construction professionals, (b) it place a statutory standard of competence in place which registration professionals must demonstrate they have met, (c) it requires continuous professional development and (d) it allows for complaints to made on the grounds of professional misconduct or poor professional performance for which penalties, including the ultimate sanction of deregistration can apply.
SI No. 9 of 2014 empowers professionalism and competence on construction projects. These services come at a cost which must be borne by the consumer who will in turn enjoy the benefit of a better quality, compliant building.
SI No 9 of 2014 also introduces accountability through the lodgement of compliance documentation, inspection plans and statutory certificates. Existing and future owners of a building will have access through a public register to documentation which demonstrates how compliance with building regulations has been achieved in the design and construction of their building.
The CIRI register will also provide consumers with reassurance that they are dealing a registered contractor who has demonstrated their competence in the relevant category of buildings/works and who is otherwise law abiding and compliant. Complaints against poor performance can also be made which, again, in the case of the most severe breaches may result in deregistration.
The Minister has also undertaken to explore the potential for latent defects insurance as the ultimate form of recourse for consumers.
Clamping down on shadow economy activity is a shared concern of Government but this Department does not play a leading role in this regard. Needless to say registration of construction professionals, the inclusion of design certificates and statutory certificates of completion on the statutory register of building control activity and the new CIRI register will each have a role to play in combatting undeclared economic activity and levelling the playing field in respect of compliant operators.
Again, it is necessary to correct the assumption that SI No. 9 of 2014 requires the employment of a main contractor – this is not the case.
In relation to the implications of, for example, plumbers and electricians exchanging services on a non-fee paying basis/favour basis, the position is that the Building Control Act 1990 or the regulations made thereunder, including SI No. 9 of 2014, are not concerned with this aspect of the matter. Once persons are competent to do the work they are assigned, the requirements of the Building Control Regulations will have been fulfilled. The Revenue Commissioners may advise on the benefit-in-kind implications, if any, of such arrangements.
Anyone intending to self-build will not find an assigned certifier
The Department is confident that the construction market will respond to the opportunities that become available. Allowing a little time for construction professionals to get to grips with the new arrangements in relation to the role of lead designed and assigned certifier, there is no reason to doubt that these services will be on offer to the self-build sector. It is encouraging to note that several hundred commencement notices have already been lodged on the Building Control Management System in accordance with SI No. 9 of 2014. It is further understood that a number of self-build dwellings have also been the subject of commencement notices and been validated by building control authorities.
That the law now state that to construct a home you must be a principal or director of a building company only
This is not the case.
As you will see from the Notice of Assignment of Builder, the owner is required to appoint a person who they (i.e. the owner) are satisfied is competent to undertake the works. In legal terms a person can be an individual, a sole trader, a company (registered or unregistered) or other.
The regulations require that the person so assigned signs the builders undertaking at commencement and the Certificate of Compliance on Completion (Part A). It is only where the assigned person is a company that the requirement applies that the signatory be a principal or director (i.e. not an employee). The form must be signed by the assigned builder (who takes on the statutory obligation of builder) and not an agent.
In relation to the question of fraud, a point not dealt with in our previous public statements, I fail to see the relevance of the issue. If an owner appoints themselves to take on the legal responsibility of building their own house and certifies for the purposes of a public registers that this has been the case, who exactly is at risk of being defrauded?
The suggested amendment of including the words ‘self builder/building owner’ is unnecessary and inappropriate. The term builder refers to the person assigned to undertake the works and, as such, can be taken to include the term self builder while to include the term building owner would actually confuse the line of responsibility – it is the builder’s obligations that the relevant to forms in question. The owner’s obligations are dealt with on other forms where relevant (e.g. the commencement notice, the notices of assignment).
Building Control and EU Law
In relation to your being informed that the Department has advised Building Control Officers that SI No 9 of 2014 is required in order to transpose an EU Directive, you are right that this is factually incorrect. Building standards and building control generally continue to be matters of national administration. The Minister’s power to make building control regulations arises from the Building Control Act 2014.
I trust the above clarifies our position on the key concerns raised in your letter.
I will be happy to correspond further if further clarification on these or other aspects of the matter is required.
Architecture/Building Standards Section
Department of the Environment, Community and Local Government