Building Regulations

05-01-2015

Author: Mark Barr, Simon Hannigan, Niav O’Higgins and Mary Liz Mahony



Introduction

The Building Control (Amendment) Regulations 2014 (SI no 9 of 2014) (The “2014 Regulations”) came into operation on 1 March 2014. The full requirements of the 2014 Regulations apply to those types of development as described below where a commencement notice is filed after 1 March 2014.

The 2014 Regulations apply:

  • To the design and construction of a new dwelling.
  • To any extension to a dwelling involving a floor area of more than 40 square metres; and
  • To works to which Part III of the Building Control Regulations apply, namely works which require a fire safety certificate, which would mean nearly all types of commercial buildings, including, industrial, office, retail and so forth. In addition a material change of use may be caught which may oblige fit-out works, for example, to comply with the new requirements.

The 2014 Regulations introduced a new form of commencement notice and 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 at commencement stage to carry out this task. The 2014 Regulations prohibit the opening, occupation or use of a building until a Completion Certificate has been filed and registered by the building control authority making compliance with the 2014 Regulations of great importance for building owners, purchasers, or prospective tenants.

Key Points

The principal changes introduced by the 2014 Regulations are as follows:

  • There is a new form of Commencement Notice, which can be filed electronically on the Building Control Management System and which must be submitted with various documents. Those documents include such calculations, specifications and plans as are necessary to demonstrate that the building will comply with the standards imposed by the 2014 Regulations. If the documents are submitted in hard copy, the building control authority will have the right to charge an administration fee.
  • In addition, certificates completed by the building owner in prescribed formats must accompany the Commencement Notice, specifically certificates appointing the Design Certifier and the Builder undertaking to build in accordance with the building regulations. A Preliminary Inspection Plan, providing a schedule of inspections for overseeing essential aspects of the build by the Assigned Certifier and an online assessment regarding the proposed approach to compliance with the building regulations must be completed. Both the Design Certifier and Assigned Certifier must be of one of the following professions: architects, chartered engineers or building surveyors.
  • The 2014 Regulations also make a number of amendments to the “7 Day Notice”. This is the form of Notice which is required where work is to commence before the grant of a fire safety certificate. Where utilised 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.
  • The 2014 Regulations are designed to work in tandem with a “Code of Practice for Inspecting and Certifying Buildings and Works” which will guide the Assigned Certifier, Builder, Design Certifier and other parties, in carrying out their respective roles including the preparation of an inspection plan, executing inspections and certifying the works. The final approved version of the Code was made available at the end of the first week in February 2014.
  • On completion of a building or works a Certificate of Compliance on Completion must be completed, Part A by the Builder and Part B by the Assigned Certifier. These certificates must be submitted to the building control authority where a register of same is maintained. In addition the Completion Certificate must be accompanied by the Inspection Plan implemented by the Assigned Certifier and such documentation as necessary to show:
    • how the completed works differ from the plans submitted at commencement stage; and
    • how the completed works comply with the building regulations.

             The building control authority has 21 days to query the certificate, failing which it must register it.

  • It is assumed that solicitors for purchasers of new houses or apartments will be satisfied with a copy of the Certificate of Compliance on Completion as signed and registered, together with proof of its registration as sufficient compliance with the building regulations, so long as it clearly applies to the property being acquired [see citation 1]. With regards a housing estate, it has been anticipated that individual houses will have individual certificates. It is likely that purchasers’ solicitors will want to ensure that the certificate properly identifies the unit they are concerned with [see citation 2]. More substantial commercial properties may necessitate additional certification.
  • There are no provisions for a situation where the final Certificates of Compliance on Completion are not registered. Opening, occupying or using a building before a Certificate of Compliance on Completion has been filed and registered by the building control authority will be a breach of the 2014 Regulations.
  • All documentation filed with the building control authority will be retained for at least six years.

Form of Certificates

  • The form of Commencement Notice sets out:
    • The name of the building owner and his contact details;
    • The project particulars;
    • The Builder and his contact details;
    • The designer and his contact details; and
    • A schedule of all the documents.
  • The notice must be signed by the building owner.
  • The Certificate of Compliance (Design) (to be completed by the Design Certifier) confirms that the documentation submitted in the schedule of the Commencement Notice complies with the building regulations. Where appropriate it provides that the certifier relies on certificates from other parties who designed specialist areas of the building and is based on the certifier having used reasonable skill, care and diligence.
  • The form of Notice of Assignment of Person to Inspect and Certify Works (Assigned Certifier) is to be signed by the building owner, notifying the building control authority who is being nominated to carry out the inspections in the course of the work and certify compliance on completion. The building owner states further that, having regard to the Code of Practice for Inspecting and Certifying Buildings and Works, he is satisfied that the person assigned is competent to inspect the works and to coordinate any inspection work undertaken by others and to certify the compliance of the works with the provisions of the building regulations, insofar as they apply to the building or works concerned.
  • The form of Certificate of Compliance (Undertaking by Assigned Certifier) includes an undertaking to use reasonable skill, care and diligence during inspections of the building or works and to manage the inspection work of others. It further requires the certification on completion of compliance with the provisions of the building regulations following the implementation of the inspection plan.
  • The Notice of Assignment of Builder is to be signed by the building owner, notifying the building control authority of the person appointed to carry out the building work, including a statement that the appointee is competent to undertake the work. General details of the appointee would also be provided.
  • It appears the eventual effect of the 2014 Regulations is that only registered Builders will be able to carry out building works in the future and only those with construction competence and experience will be able to register. The CIF is compiling a voluntary register at the moment, with the intention that the department will put it on a statutory footing in 2015.[See citation 3]
  • The Certificate of Compliance (Undertaking by Builder) is comprised of a confirmation that the Builder is commissioned by the building owner to undertake the works and confirmation of his own competence and of those employed and engaged by him to undertake such works. Further, the Builder must undertake to construct the works in accordance with the plans etc. submitted (or subsequently issued to him) and to cooperate with the Inspection Plan set out by the Assigned Certifier and to take all reasonable steps to ensure that he would be able to certify that the building or works are in compliance with the requirements of the building regulations.

Conclusion

The intention of the 2014 Regulations is to focus all parties on compliance with the Building Regulations from the outset. This is to be achieved by requiring the development of an inspection plan and having all parties, including builders formally acknowledge their respective roles. It is important that the parties engage with and understand the implications of the 2014 Regulations. Building owners in making appointments will need to allow sufficient time to deliver the Commencement Notice and those intending to act as certifiers (including ancillary certifiers) or builders must consider how these roles need to be carried out to facilitate an efficient and effective inspection process. The inspection process must be sufficiently flexible to accommodate changes but comprehensive enough that the Completion Certificate can be signed without difficulty at the conclusion of the works.

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1. Law Society Practice Note, 4 April 2014, Update on Building Control (Amendment) Regulations 2014, Rory O’Donnell

2. Law Society Practice Note, 4 April 2014, Update on Building Control (Amendment) Regulations 2014, Rory O’Donnell

3.  Law Society Practice Note, 4 April 2014, Update on Building Control (Amendment) Regulations 2014, Rory O’Donnell

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