Building Control (Amendment) Regulations 2013 Legal implications. Deirdre Ní Fhloinn Consultant Reddy Charlton Solicitors

Transcription

1 Building Control (Amendment) Regulations 2013 Legal implications Deirdre Ní Fhloinn Consultant Reddy Charlton Solicitors

2 Outline Have the industry s concerns in relation to the draft Regulations of 2012 been addressed? New obligations for owners, builders and professionals Overview of the new certification requirements What are the consequences of breach of the Regulations or negligent certification?

3 Legal issues for consideration Do the certification requirements and the new public register increase the liability of design professionals? Will the assigned certifier have any liability for deficiencies in the ancillary certificates? What steps will the assigned certifier need to take to form the basis of the certificate on completion? How will parties mitigate the risk of delays in construction projects which may arise from rejection of the Certificate of Compliance on Completion? Have any legal remedies been created or enhanced for end-users of building works?

4 2012 draft Regs Engineers Ireland submission no requirement that Designers (as well as certifiers) should be registered professionals the only required insurance was PII potential legal liability for defective works / noncompliant works no provision for multi-person certification no certificates required from contractors.

5 2012 draft Regs RIAI submission contractors should certify their own compliance proposals uninsurable due to extent of liability sought to be imposed on professionals informed and risk-based inspections should be an integral part of the system mandatory Latents Defects Insurance should be introduced mandatory registration of contractors and subcontractors

6 2012 draft Regs SCSI submission insurance certification and PI issues; decennial insurance should be explored certificate that works not defective /in breach of the Second Schedule unacceptable plan lodgment process must be flexible assignment of certifier should deal with change of entity during construction process unfair to hold one certifier liable for failings of others: parent and subservient certificates recommended

7 2013 Regulations Key Points Plans and specifications must be lodged with commencement notices and 7 day notices Mandatory system of certificates of compliance with Second Schedule Requirements Certificates to be published on a public Register A building may not be opened, occupied or used until the Completion Certificate is on the Register

8 Who s who? Owner: owns / is legally responsible for building Design Certifier: designs works, compiles plans and specs for Commencement Notice, co-ordinates design Builder: appointed to build and supervise the works Assigned Certifier: implements inspection plan Ancillary Certifiers: e.g. specialist designers / subcontractors Building Control Authority: validation /inspection/ Register

9 Terminology Plans: such plans etc. as are necessary to demonstrate compliance with the Second Schedule Requirements Certificates: Certificate of Compliance (Design) Certificate of Compliance (Undertaking by Assigned Certifier) Certificate of Compliance (Undertaking by Builder) Certificate of Compliance on Completion.

10 Commencement Notice The form of notice is specified in the Second Schedule; the following must be furnished with the Notice: From the owner: Plans and Notices of Assignment. From the Design Certifier: Certificate of Compliance (Design) From the Assigned Certifier: A Certificate of Compliance (Undertaking by Assigned Certifier) From the Builder: A Certificate of Compliance (Undertaking by Builder)

11 7 day Notice New sub-article 20A (2): A 7 day notice will be as set out in the Third Schedule, to be accompanied by: a valid application for a fire safety certificate, plans and specifications necessary to demonstrate how the works will comply with the Second Schedule Requirements a 7 day notice statutory declaration, the notices of assignment and certificates of compliance in the prescribed form.

12 Notices of Assignment These notices confirm the appointment by the owner of the assigned certifier and the builder The Notice of Assignment of Builder will state that the owner has assigned a named builder to carry out the works and is satisfied that the builder is competent to undertake those works. The Notice of Assignment of Person to Inspect and Certify Works (the Assigned Certifier) will state that the owner has assigned a registered architect or building surveyor, or a Chartered Engineer, as Assigned Certifier, who is competent to inspect the works and to coordinate inspection by others, and to certify compliance with the Second Schedule Requirements

13 Certificate of Compliance (Design) The new Design Certificates provide as follows: That the designer is a registered Architect or Building Surveyor, or a Chartered Engineer, and is competent to carry out his/her design and to coordinate the design of others That the Plans (listed in the Commencement Notice) have been prepared (i) exercising reasonable skill, care and diligence by the designer / others and (ii) to demonstrate compliance with with the Second Schedule Requirements if applicable That, having regard to the Plans, the proposed design for the works/building is in compliance with the Second Schedule Requirements, if applicable.

14 What if there is a change of certifier/builder/owner? Owner must submit notice of change of the assigned certifier or builder to the BCA within 14 days, with certificates from the replacement certifier/builder to replace those originally lodged with the Commencement Notice New owner must notify the Building Control Authority of change in ownership of the works within 14 days Draft Code: an assigned certifier whose appointment is terminated / ended must provide the owner and the BCA with the records of inspection to the date of termination, with any certificates of compliance of design/construction until that date, regardless of any fees issue

15 Certificate of Compliance (Undertaking by Assigned Certifier) The Assigned Certifier must undertake as follows: To use reasonable skill, care and diligence To inspect the works and to coordinate the inspection work of others to certify compliance with the Second Schedule Requirements following the implementation of the inspection plan by the Assigned Certifier and individual certifiers

16 The Certificate of Compliance (Undertaking by Builder) : The builder s certificate/undertaking provides as follows: confirmation that the builder has been commissioned to undertake the works and that he is competent to do so an undertaking that any persons employed by the builder will be competent to undertake the works an undertaking to construct the building works in accordance with (i) the Plans as certified under the Form of Certificate of Compliance (Design), and (ii) such other documents relevant to compliance with the Second Schedule Requirements

17 Owner obligations The building owner must: sign the Commencement Notice (Article 9) / 7 day notice appoint an Assigned Certifier (to inspect and certify compliance on completion) appoint a competent Builder to construct in accordance with the Plans and to certify compliance on completion, notify the BCA of change and replacement of the Assigned Certifier/ Builder. ensure that adequate resources and competent persons are made available

18 Builder Obligations The Builder appointed to carry out the works must: construct the works in accordance with the Plans & the Building Regulations Co-operation with the design team and certifiers & provision of documents and test data. Certificate of Compliance (Undertaking by Builder) before works start Must complete and sign Part A of the Certificate of Compliance on Completion

19 Design certifier obligations Designers must: design their respective elements of work in compliance with the Second Schedule Requirements provide a Certificate of Compliance (Design) to be lodged with the Commencement Notice carry out inspections for their designed works pursuant to the Inspection Plan provide relevant information and ancillary certificates to the Assigned Certifier

20 Assigned Certifier The Assigned Certifier must: provide and sign Certificates of Compliance with the Commencement Notice and on Completion plan and implement the Inspection Plan with the design team co-ordinate production of ancillary certificates required for the Completion certificate from design team and others provide all certification / inspection reports to the owner at the end of appointment

21 The Inspection Plan Section 7 of the draft Code of Practice certifiers should adopt an appropriate inspection plan which takes full account of relevant factors for the building work concerned Plan depends on various factors: type of building / construction, expertise of builder, complexity of project, etc. Plan should set out the scope and frequency of inspection Assigned Certifier should agree an Inspection Notification Framework with the builder and owner before work starts Inspection Plan must be furnished with the Certificate of Compliance on Completion

22 Ancillary Certifiers May be appointed by the owner, the design team, or the builder Examples: architectural technicians, consulting engineers, specialist designers such as piling designers, and other subcontractors, suppliers and manufacturers. Ancillary certifiers should (i) undertake to cooperate with the rest of the design team in accordance with the Inspection Plan and (ii) provide certificates in respect of their work to the Assigned Certifier.

23 Certificate of compliance on Completion New Part IIIC provides for the Certificate of Compliance on Completion, which must be submitted to the BCA Part A is completed by Builder, and Part B by Assigned Certifier. Particulars of the certificate must be included on the Register before the relevant works are opened, occupied, or used Plans must be submitted outlining how the completed works (i) differ from the original plans, and (ii) comply with the Second Schedule Requirements. Inspection Plan must be submitted.

24 Role of Building Control Authority processing and deciding on applications for Fire Safety Certs and Disability Access certificates receiving and validating submissions but without an obligation to carry out a technical review conducting inspection, enforcement and prosecution under the 1990 Building Control Act may reject the Certificate of Compliance on Completion BCAs will maintain a public Register of valid applications, certificates on compliance, enforcement notices, etc.

25 Part IV Register The particulars to be kept in the Part IV Register have been expanded to include valid commencement notices, 7 day notices or certificates of compliance. Records relating to particulars on the Register may be accessed via the FoI Acts 1997 and 2003 Code of practice: certificates of compliance on completion not approved within 21 days will be entered automatically

26 Consequences of breach / negligent certification? Section 6A has been inserted into the Principal Regs: failure to comply with any requirement under Parts II, III, IIIA, IIIB or IIIC shall be an offence to which s.17 (2) of the 1990 Act applies. Negligent certification do the Regulations impose any greater duties than those that apply at law?

27 Legal issues for consideration Do the certification requirements and the new public register increase the liability of design professionals? Will the assigned certifier have any liability for deficiencies in the ancillary certificates? What steps will the assigned certifier need to take to form the basis of the certificate on completion? How will parties mitigate the risk of delays in construction projects which may arise from rejection of the Certificate of Compliance on Completion? Have any legal remedies been created or enhanced for end-users of building works?

28 Any Questions?

29 Disclaimer This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Reddy Charlton for any action taken in reliance on the information contained herein. Any and all information is subject to change.