Correspondence to and from DECLG (Martin Vaughan)

From:Martin Vaughan - (DECLG)

Sent: Thursday, March 13, 2014 6:02 PM

To:

Subject: FW: Building Control Section - Department of Environment, Community and Local Government

Dear Mr McCloud,

I wish to reply to your email of 26 February 2014 and 10 March 2014.

Firstly, I am happy to forward a PDF copy of Information Note issued on 26 February 2014 and now on headed paper as requested.

In relation to your understanding of the reply to Parliamentary Question No. 544 of 28 January 2014, I can confirm that your understanding accords with the Department’s position that a Self-Builder can nominate them-self as the Builder and sign the undertaking and the Certificate of Compliance on Completion (Part A). In nominating themselves as Builder and signing the Undertaking by the Builder, they are declaring that they are competent and undertaking to follow the certified design and to employ/engage competent persons, etc. and anyone signing these forms must of course be faithful to the undertakings so given.

In relation to the signature by a Self-Builder of the Undertaking by the Builder or Certificate of Compliance on Completion (Part A), the Department does not foresee a difficulty in a Self-Builder signing this form where they are clearly not a company.

To put things in their proper context, SI No. 9 of 2014 in introducing certificates of compliance must support and preserve the statutory responsibilities (on owners, designers and builders) that are already set out under the Building Control Act 1990 (the Act of 1990). The chain of responsibility begins with the owner. They must now sign the Commencement Notice and the notices of assignment of the Builder and of the Assigned Certifier (for present purposes we are only concerned with the Builder).

The Notice of Assignment of Builder requires the owner to declare they are satisfied that the assigned person is competent to undertake the works. This is the essential point - that the owner acts with responsibility. In practice this assigned person will be a sole trader, a company or a Self-Builder and their status is irrelevant once competence is assured. The Building Control Authority has no role in checking or verifying the builder's competence – it is the owner’s responsibility. If the building control authority does have concerns they have separate powers of inspection and enforcement under the Act of 1990 to deal with the situation as appropriate.The only limitation put on the assignment is that the owner satisfies themselves that the person assigned is competent to undertake the works. This Notice of Assignment is signed by the building owner and no one other than the building owner can make this assignment. Your will note form the form that if the assigned person changes the building owner is legally obliged to inform the local authority and to assign and notify a new builder. The importance of this is that assigned builder (and no one other than the assigned Builder) can sign Part A of the relevant Certificate of Compliance on Completion.

The Assigned Builder is then required to sign their form of undertaking. The form must be signed by the person notified to the Building Control Authority as the Builder, thus preserving the chain of responsibility. In effect the owner controls who signs this form by making the notice of assignment. Where the person assigned is a firm, the signature must be signed by a Principal or Director i.e. it should not be signed by an employee.This qualification of the signatory is only necessary in the case of a company. Where a Self-Builder is acting on his or her own behalf, there are no agents or intermediaries involved, and the potential for confusion over legal responsibility does not therefore arise.

In relation to the signature by a Self-Builder of the Certificate of Compliance on Completion, the Department’s view would be as outlined above in relation to the form of undertaking. Part A of the Certificate of Compliance on Completion must be signed by the person assigned and notified by the owner at commencement. Again it is only where the assigned Builder is a corporate entity that the signature must be signed by a Principal or Director i.e. not by an employee.

From a building control perspective, if this certificate is signed by a person other that the person already assigned and notified, then a problem will arise in relation to validating and registering the certificate.

On this aspect of the matter you also asked why the signature line could not refer to the “building owner” – in this regard it is important to understand that the undertaking by the Builder and the Certificate of Compliance on Completion deal with the responsibilities of the Builder (not the owner) and it is important therefore that persons signing these forms know and understand that they are dealing with their responsibilities as Builder for the purposes of these forms.

In relation to the “Code of Practice for Inspecting and Certifying Buildings and Works” and the guidance in relation to use of competent persons, in your situation it is the Self-Builder who must be satisfy as to the competence of any person they engage for a particular task.

In relation to the Minister’s public comments on the likely cost of engaging an assigned certifier I attach for information a statement on the impact of the regulations which may be helpful in outlining the Department’ position in this regard.

I trust the above should finally clarify these matters for you.

Yours sincerely

Martin Vaughan

Assistant Principal

Architecture/Building Standards Section

Department of the Environment, Community and Local Government

Telephone: ++ 353 1 888 2592

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From: Martin Vaughan - (DECLG)
Sent: 26 February 2014 14:14
To: 'Irish Association of Self Builders'
Subject: RE: Building Control Section - Department of Environment, Community and Local Government

Dear Mr McCloud

Thanks for that

I’ll do my best to get back to you quickly on those issues which can all be explained.

We’ve issued the attached notice to building control authorities today.

Regards

Martin

Martin Vaughan

Assistant Principal

Architecture/Building Standards Section

Department of the Environment, Community and Local Government

Telephone: ++ 353 1 888 2592

From: Irish Association of Self Builders [mailto:
Sent: 26 February 2014 11:31
To: Martin Vaughan - (DECLG)
Subject: Re: Building Control Section - Department of Environment, Community and Local Government
Importance: High

Dear Mr Vaughan,

I would like to firstly take this opportunity to thank you for your reply on behalf of the Minister Hogan regarding S.I. No.9 of 2014.

As an association we are grateful that we can rely fully on the information given by the Minister in reply to Parliamentary Questions (PQ) since 28th of January 2014 as far as the effect of S.I. No.9 of 2014 on Self Builders building their own homes.

I do understand that neither the Minister or the Department of Environment, Community and Local Government are responsible for what has been discussed in the public domain and therefore would like you to clarify some points below which include the answer that was given by Minister Hogan on 5th of February 2014 following a question asked by Mr Thomas P Broughan T.D.

“Question No. 544 of 28 January 2014, if persons who self-build their homes will be required to take on full responsibility for ensuring that the properties concerned are in compliance with the Building Control (Amendment) Regulations (SI No 9 of 2014)..”the Minister replied; “ Local building control authorities have powers to inspect and enforce compliance and where concerns exist in relation to a particular building, the authority may serve an enforcement notice on both the owner and the builder. In a self-build situation the owner and the builder will be one and the same.” and “In practice, even in a self-build situation, the owner-builder may contract out certain construction tasks. Under the new Regulations the owner-builder will also be required to engage competent registered professionals to undertake the design and to perform the role of the Assigned Certifier who will prepare an inspection plan, ensure this plan is implemented by himself and others and, in conjunction with the self-builder, sign the Certificate of Compliance on Completion.”

We understand from the reply above that has been given by the Minister, a Self Builder can nominate themselves as the Builder and sign the completion certificate. Which would be a great news for us but so that you can make it clear for a simple person like myself, can you please let me know how the following works? S.I.9 of 2014 was signed into law on 15th of January 2014 by Minister Hogan, which makes it a legal document. Looking at this document (attached for your attention), under Article 9, “UNDERTAKING BY BUILDER FORM OF CERTIFICATE OF COMPLIANCE”. In this document you can see: Signature: ———------———— Date: ———————— (to be signed by a Principal or Director of a building company only). Now according to the Minister’s reply above “the owner and the builder will be one and the same”. Therefore, can you please tell me, how a building owner can sign a legal document (That is the law and will be seen by any court in the country as the law) as the builder confirming the Certificate of Compliance when they are not a Principle or Director of a Building Company?

I would also like to point out Article 20 F, Certificate of Compliance on Completion, which again is asking for the builder to sign the certificate and once again;(to be signed by a Principal or Director of a building company only). Surely Mr Vaughan,you and Minister Hogan are not asking the descent, hard working and honest people of Ireland to break the law and sign a legal document which would imply that they are a Principle or Director of a Building Company when they are not. Are you?

Please, with all due respect, do not reply with another one of those politically correct statement about the reason for this amendment and how beneficial this would be to the country. All we as self builderswant to know is, can we go ahead and do a self build house for our family by using the old traditional direct labour route? If we can as it is being confirmed by the Minister and the government publications, what is the purpose of the sentence“to be signed by a Principal or Director of a building company only”. If this sentence does not apply to self builders, why is there not the words “/ building owner” instead of “only”?

Just to get a little bit more technical, I notice that you personally presented this amendment to the Engineers Ireland on 17th of January 2014 (Attached for your attention). In this document under the Final Cert- Builder, you mentioned “Code of Practice for Inspecting and Certifying Buildings and Works”. Under the Code of Practice (Attached for your attention),“Builder” means a competent builder appointed, for purposes of the Building Control Regulations, by the building owner, to build and supervise the works; “Competent Person”: a person is deemed to be a competent person where, having regard to the task he or she is required to perform and taking account of the size and/or complexity of the building or works, the person possesses sufficient training, experience and knowledge appropriate to the nature of the work to be undertaken. Can you please tell me who decides that a person working on the house has the sufficient training, experience and knowledge to do the job. Can the building owner go ahead and employ anyone that they are confident in to do the job properly, as it has been done before S.I 9 of 2014 or S.I 80 of 2013?

And finally, I would greatly appreciate it if you could clarify how on the following article from Irish Independent on 26th of February 2014, Minister Hogan’s comment "wild exaggerations made in relation to the increased costs of building a home which will arise, saying the likely impact on homeowners would be between €1,000 and €3,000 per unit.” That is very interesting that should you go ahead and build under S.I. 9 of 2014, the extra cost for the design certifier, inspection certifier and profits taken by a Building Contractor (If one is used) and other administration fees would only be an extra €1000 to €3000. Would the Minister be kind enough to give us details of how this figure was worked out?

I would like to thank you for getting back to me and look forward to hearing from you soon.

Kind regards,

Shane McCloud
Irish Association of Self Builders

From:Martin Vaughan - (DECLG)

Sent: Tuesday, February 25, 2014 5:38 PM

To:

Cc:qcsofficer

Subject: RE: Building Control Section - Department of Environment, Community and Local Government

Dear Mr McCloud,

I have been asked by Mr. Phil Hogan, TD, Minister for the Environment, Community and Local Government to reply to your email of 21 February and related correspondences received by the Minister’s Office and the Department in recent weeks, in relation to the status of self-builders under S.I. No. 9 of 2014.

At the outset, I wish to emphasise that from the Minister’s and the Department’s perspective your association can rely fully on information given by the Minister in reply to Parliamentary Questions (PQs) on this issue.

There have been several PQs in relation to self-building since 28 January 2014 to the current date. In response to all such question the clear and unequivocal response has been that SI No. 9 of 2014 does not terminate or prevent an owner from building their own home.

This can be taken as the Department’s policy position on the matter. In devising and developing SI No. 9 of 2014 at no stage has there been any policy imperative to prevent self-building.

The Department shares your concern about the misinformation in the public domain about the question of self-build but it cannot be held responsible or accountable for the opinions or communications of others.

As regards the legal consequences of S.I. 9 of 2014, it is important that to understand in the first instance that the legal obligations on owners, designers and builders to design and contract in accordance with the building regulations arise under the Building Control Act 1990. The Department’s view would be that regulations made under the Act of 1990 cannot undermine or undercut the statutory obligations set out under the Act itself and cannot introduce new obligations that are not provided for in the Act. On this basis, the Department’s view would be that SI No. 9 of 2014 does not create new legal obligations on owners, designers or builders so much as put in place certain procedural arrangements by which each of these parties can demonstrate that they have fulfilled their statutory obligations.

As you may also be aware, the Government is committed to bringing in statutory registration of builders and contractors by 2015 – a voluntary register is currently being introduced by the Construction Industry Federation, working in conjunction with the Department and industry stakeholders, as a first step in this process. This Government priority of statutory registration of contractors and builders can be achieved in a manner that accommodates and supports self-build arrangements. The Department will be happy to liaise further with your association in this regard.

If a meeting to discuss your concerns would be of assistance to your association, the Department will be happy to facilitate you at an early date.

I trust this clarifies the Department’s position for you.

Yours sincerely,

Martin Vaughan

Assistant Principal

Architecture/Building Standards

From: Irish Association of Self Builders [mailto:
Sent: 21 February 2014 12:17
To: Minister
Cc:qcsofficer
Subject: Building Control Section - Department of Environment, Community and Local Government
Importance: High

Dear Building Control Section,

RE: Self- Builder status under Building Control (Amendment) Regulation (SI.9 of 2014)

I am writing to you on behalf of the Irish Association of Self Builders regarding the status of self-builders from 1st March onwards. Despite numerous written from Minster Phil Hogan to questions asked on our behalf by other TD’s the status of our members remains vague.

We have been informed by attendees that at an Engineer's briefing on January 17th 2014 the consensus view of the Construction Industry Federation (CIF), Department of the Environment (DOE) and Royal Institute of the Architects of Ireland (RIAI) representatives was that self-building would no longer be possible from 1st March onwards. Hubert Fitzpartick of the Construction Industry Federation (CIF Director of Housing) confirmed this position that self-building would end on 1st march (interview on January 23rd 2014).

Contrary to this in numerous written answers to TD’s you have stated that self-building can continue as before under SI.9. John Graby, the Director of the RIAI stated that self-building was possible under BC(A)R SI.9 in an interview on 6th February 2014.

We have read with dismay recent Local Authority public guidance on BuC(A)R SI.9. It is unfortunate that a recent local authority guidance to the public on Building Control (Amendment) Regulation (SI.9 of 2014) would appear to be inaccurate and contradictory. Given that we have less than 2 weeks before the implementation date of 1st March, incorrect information is of no assistance to members of the public and professionals who are scrambling to adapt to the new regulation.

Reading item 22 together with 11 and 12 it would appear that Local Authorities may deem owners that undertake the role of builder on commencement compliant, provided the completion certificate is signed by a “Builder”- a “Director of Principal of a building company”. This could indicate that a completion certificate provided by a competent “builder”(someone not involved in the build or inspection during construction) could be satisfactory compliance with SI.9. So we now have the unacceptable situation where we have the Minister for Environment, Community and Local Government at odds with his Department with different interpretations of the regulation, the CIF and the RIAI also with different opinions (two key stakeholders) and finally local authorities who issued different guidelines again on the status of the self-builder under BC(A)R SI.9.

Building Control (Amendment) Regulation (SI.9 OF 2014) of course has not changed and the completion certificate for a builder states "to be signed by a Principal or Director or of a building company only".

We the Irish Association of Self Builders, have sought independent legal advice on the status of self-builders under Building Control (Amendment) Regulation (SI.9 of 2014). Our legal advisor confirmed that the sentence "to be signed by a Principal or Director or of a building company only" is the applicable section that has been signed into law. If that sentence is not removed or changed to include building owner, then the building owner may find themselves with legal actions taken by or against them should they go ahead and sign the certificate as the builder. The document Building Control (Amendment) Regulation SI.9 of 2014 was passed in to law by the Minister on the 15th of January 2014 and it can not be changed for individual cases.