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29 April 2013
On March 8 2013 the minister for the environment, community and local government signed the Building Control (Amendment) Regulations 2013 into law, which will be effective from March 1 2014. The enactment of the regulations followed a wide-ranging and often heated public consultation process which began in April 2012 with the publication of draft regulations.
Even in draft form, it was clear that the regulations would radically alter the manner in which compliance with the Building Regulations 1997 to 2013 is demonstrated. The subsequent public consultation identified the concern that responsibility, and ultimately liability, for compliance with the Building Regulations and certification had shifted too far in the direction of construction professionals. As no further drafts were formally published, the enactment of the regulations has been awaited with bated breath. The key question was whether the most controversial aspects of the proposed regime would be enacted into law.
Focus of regulations
The regulations introduce a substantial number of changes to the current system of certification of compliance with the Building Regulations. Most significant is the revision of the commencement notice together with the introduction of three new types of mandatory certificates, in prescribed form:
The regulations require a continued focus on compliance with the Building Regulations, from the design stage to completion. Before works commence, the design of the works must be certified as complying with the Building Regulations by the execution of the design certificate. At the commencement stage (through notices in prescribed form), the building owner will also nominate an assigned certifier and a builder. The assigned certifier and builder will be tasked with confirming that the completed works comply with the Building Regulations by executing the completion certificate and must also formally undertake to carry out this task at commencement stage.
The regulations are intended to work in tandem with a code of practice for inspection and certification which will inform the assigned certifier and builder how to manage their respective roles, including the preparation of an inspection plan. The regulations specifically state that where works are "inspected and certified in accordance with the guidance contained in the Code of Practice…this shall, prima facie, indicate compliance with the relevant requirements of these regulations."
However, the code has not yet been made publicly available, even in draft form. A recent indication from the department is that the code will be published by the end of April 2013.
While the requirement to submit a commencement notice is not new, the regulations have significantly altered its scope and effect. Article 9 now requires that a commencement notice in prescribed form be submitted with the following documentation:
The design certificate, to be completed by the building designer (a registered architect, builder surveyor or chartered engineer), must be submitted with the commencement notice. It requires confirmation that the plans, among other things, included with the notice have been prepared to demonstrate compliance with the applicable requirements of the Building Regulations, and:
"have been prepared exercising reasonable skill, care and diligence by me, and prepared by other members of the owner's design team and specialist designers whose design activities I have coordinated."
Inspection and certification of the works
The assigned certifier must also be a registered architect, building surveyor or chartered engineer and will be required to provide an undertaking, submitted with the commencement notice to:
"use reasonable skill, care and diligence, to inspect the works and to coordinate the inspection works of others and to certify following the implementation of the inspection plan by myself and others, for compliance with the requirements of the Second Schedule to the Building Regulations."
The same person must also execute Part B of the completion certificate certifying that:
"the inspection plan drawn up in accordance with the Code of Practice…has been fulfilled by the under-signed and other individuals nominated therein having exercised reasonable skill, care and diligence and that the building or works is in compliance with the requirements of the Second Schedule of the Building Regulations."
The builder will also be required to provide an undertaking, submitted with the commencement notice, identifying the works which it has been commissioned to undertake and confirming its own competence, and that those employed and engaged by it, to undertake such works. Further, the builder must also undertake to construct the works in accordance with, among other things, the plans submitted (or subsequently submitted) and to cooperate with the inspections set out in the inspection plan prepared by the assigned certifier. The builder must also execute Part A of the completion certificate certifying that the works as completed have been constructed in accordance with plans, and reliant on this, the works are in compliance with the Building Regulations. Both the undertaking and the completion certificate must be signed by a "Principal or Director of a building company only".
A completion certificate executed by both the assigned certifier and builder must be submitted to the building control authority. The certificate must be accompanied by:
Works or buildings cannot be "opened, occupied or used" until the relevant particulars of the certificate of compliance on completion are entered on a statutory register to be kept by the building control authority. However, the regulations provide that the completion certificate may refer to "works, buildings, including areas within a building, or developments, including phases thereof", indicating that works can be completed in stages if necessary.
With recent media focus on the inadequacy of the current building control regime, it was always expected that any new regulations would be radical and game-changing. Public sentiment has demanded as much. However, the public consultation in 2012 highlighted that a knee-jerk reaction would cause more problems than it would solve.
The most controversial elements of the draft regulations have been removed, including confirmations relating to insurance which had been included in the draft form of the commencement notice. In addition, a role (and responsibility) for the builder is now carved out, with the builder required to provide an undertaking and to sign Part A of the completion certificate. The wording of each of the certificates has changed, with the design certificate including a standard of reasonable skill and care, together with a reference to other designers involved in the works.
Notwithstanding these important changes, the new regulations still present a formidable challenge to the construction industry, and in particular construction professionals. It is hoped that publication of the code of practice will provide the guidance that will be required to ease the transition to the new regime.
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Mary Liz Mahony