r e a l r e v i e w . i e

Below is my submission to the Department of the Environment about the Draft Building Control Regulations 2012. I’ve recently had an article on thejournal.ie on this if you need some background (or rather, someone like me with an entirely different name has. Funny, that). What’s below is a bit on the dry side for obvious reasons, but it does matter, so here it is. I’ll rant about Doctor Who or something soon, honest.

What’s below has been slightly edited for style in a few places, because on rereading a found a few clunking bits in the letter and I’m an inveterate tinkerer. The sense of everything remains identical, though.

Mr Beausang,

I wish to make a submission with regard to the Draft Building Control Regulations 2012.

You will forgive me for not using your Excel template. I hope this letter makes clear why I have not done so. I also hope you read this submission and consider it with care. I have recently written an article for thejournal.ie, and previously wrote on the matter of Priory Hall for politico.ie, on this subject; it is one in which I have been invested for some time.

I am, like many other people from whom you will be receiving submissions, a simple jobbing architect. I’m not a leader of my profession, but I am competent, I care about my job, and I understand the workings of this industry. I was delighted to hear that there would be new Building Control Regulations as a response to the mess and wreckage that was Priory Hall. I assume that whoever wrote these regulations did so to improve things. I don’t have any reason to doubt anyone’s motivations, and I don’t do so.

The problem is that these regulations completely misunderstand the sickness at the heart of Ireland’s building industry, and they do so catastrophically; so badly, in fact, that they will quite probably make the situation worse. This is not because they are clumsily worded or need cosmetic changes. They are fundamentally misguided in the direction they take. I will try to avoid talking in terms of what “you” have done, because I am assuming the regulations are well-motivated, and I don’t wish to be simply abusive. However the fact remains that this draft legislation is entirely wrong-headed, and any claim that they will help people like the residents of Priory Hall is outright insulting to my intelligence. Whatever document the Minister and his department think they have produced, this isn’t it.

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The steps made by this legislation are as complex as one might expect, but they can essentially be broken down into three broad principles.

1. Anyone wishing to building anything (with the usual exemptions) must, by law, employ and “assigned professional” (engineer, architect or surveyor; I will refer to “architects2 from now on, for clarity) to inspect the property on-site.
2. This assigned professional must inspect the building, and at the end produces a certificate warranting that they have inspected the works and that they comply with the regulations. The professional also warrants that they “accept responsibility for the legal liability for the inspection of all works” as necessary to ensure that they are neither defective nor contravene any requirements of the Second Schedule of the Building Regulations, “Notwithstanding the responsibilities of other person/s or firm/s in relation to the works.”
3. The assigned professional must submit a full set of completed drawings to the Building Control Authority on completion.

You will receive many submissions, I’m sure, which highlight the problems with the wording and requirements that make this solution unworkable. I can summarise these concerns as follows:-

• Even someone who understands every single piece of technology installed in the building – and let’s be clear, there are not even three people in the country who understand all the technology contained in the average house, let alone a larger building – would have to be on-site full-time, monitoring every piece of building activity, to make the claim that you wish them to make.
• The warranty is basically uninsurable, as it relies on warranting the work of a third party without any concession to the principle of reasonable inspection. This is unworkable. Moreover, anyone who fails to spot defective work but signs the certificate is now defacto committing an offence. One can’t insure against committing an offence, so it is effectively uninsurable by definition. It will therefore provide no owner of a defective building with any comeback, which appears to be its function.
• Submitting a full set of construction documents to the BCA is entirely impractical. I am currently working on-site with a public building. I have not yet counted the drawings, but there are well over 300 sheets of A1 paper. There will be more. Managing this system will be entirely impossible, and it will have no effect at all on the ability of the Building Control Authorities to actually monitor the building work.
• The current situation is that the architect designs the building, and the builder builds it. The architect designs within the regulations. The builder builds the architect’s design faithfully and accurately. This is a clear delineation of responsibilities. The regulations effectively muddy that principle. Regardless of one’s opinions about the fairness of your legislation toward architects, it makes legal responsibilities less clear than previously.

The above points need deconstruction and you will receive many submissions doing just that. Mr Eóin O’Cofaigh has already made one such submission which was widely publicised, and I will try not to duplicate his points. My fear is that your response will simply be to change some wordings and remove the obvious conflicts. In principle, it’s not actually hard to make your regulations practicable: insert the word “reasonable” into some of the draft certificates, reiterate that responsibility lies primarily with those responsible for construction, and water down the full submission to the BCA to a legal requirement for all architects to retain a full paper construction set of the works for (say) 7 years. However, practicable does not equal “effective” or even “useful.”

I urge you to fundamentally reconsider the route you are taking. The problem with this legislation is not that the certificates proposed are punitively worded. The entire principle behind your proposal is desperately flawed. That’s why your excel document isn’t enough, and why I hope you take the time to thoroughly read the points below.

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What you appear to be trying to do, with these proposals, is to make architects the policemen of the building industry. And you are saying that, if architects don’t perform this role properly, they will themselves become liable.

There are two fundamental errors in this principle.

First of all, it transfers liability away from the people doing the work. An unscrupulous contractor now has less incentive to build in accordance with the regulations. If their bad work comes to light, as it did at Priory Hall, then the first person who is liable under these regulations is the architect. It’s written in black and white; the architect accepts full liability, notwithstanding the contractors’ duties. All this does it make it less likely that an unscrupulous contractor will be prosecuted.

Equally, it becomes less likely that anyone will be successfully prosecuted. Let’s assume that a defective building is certified. The archiotect will be prosecuted and will argue that they could not reasonably have spotted the defect. If they are found guilty, they will appeal to the High Court, with all the ensuing legal battles that entailys. Meanwhile the contractor who did the work will – if prosecuted – cite the architect’s duty of inspection, claim that he did the work in good faith, and claim the liability for his defective work lies with the architect who did not sufficiently inspect the site. The responsibility will fall between two stools, and amid the squabbles the owner of a defective building will be forgotten.

If these proposals are watered-down, of course, all we have is a perpetuation of the current situation; certificates that are only as meaningful as the diligence of the person who signs them, designers pressured into signing certificates when they have not been afforded access to properly inspect the works.

Secondly and more importantly; in placing the burden of inspection on architects, you transfer it away from the Building Control Authorities. This equates to deputising a police force that cannot make arrests. Architects can’t prosevute people for transgression of the Building Control Act. Realistically, the worst that could happen to an unscrupulous contractor “caught in the act” is to be made to do the job again. They may be fired. That’s all.

I’d ask you to consider the parallel issue of Safety, Health, and Welfare at Work. Over the last twenty years, construction deaths and accidents have fallen substantially. I can’t find figures to hand, but I remember them being well over the one-hundred mark. Last year there were three. It’s three too many, but it’s a colossal fall. This isn’t because the building industry had a sudden attack of conscience, it’s because designers and contractors are afraid of the Health and Safety Authority. We know that if an inspection is carried out and we are in breach of the law, we will end up in court. A builder knows that is someone has an accident due to bad practice or cutting corners, they could well be looking at imprisonment.

Architects cannot be the policemen you need. It isn’t that we don’t want the extra work, or don’t want the liability. We cannot do it.

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The most serious defects in this document are in what it doesn’t contain.

There is no mention of licensing or registering builders. This is an astonishing omission. We live in a country where it’s widely accepted that the building trade has been insufficiently regulated. I’ve worked with many builders and I’ve been lucky; they have been well-motivated, honest, decent, capable. Good people. They deserve better than to see their trade tarnished by the likes of the people behind Priory Hall. Their skills deserve to be protected and recognised by the state.

Electricians are licensed. In all the buildings I have snagged for defects, I have never found a plug socket or light that wasn’t safely wired. If an electrician doesn’t wire a building safely, they can be struck off. They lose their title and they lose their livelihood.

The builders who build Priory Hall went bust but, if they had not, their was nothing to stop them building more apartments. There’s no control at all over who becomes a builder. If a builder knew that repeated transgressions would see him lose his license, he would take the law seriously…

…but for that to happen he would have to be caught, and there’s the second great omission.

The department claims 12-15% of properties are inspected. I don’t know the provenance of that figure, and I assume councils aren’t outright lying to the government. Anecdotal evidence suggests they focus on one-off houses, in which architects are less likely to be involved. Perhaps the figures include inspections of water connections, which are common but don’t inspect the full building. All I know is that the figure is not taken at all seriously within the industry. In ten years as an architect, I have never seen a Building Inspector. Not once. Amongst my peers, this is the majority tale.

The regulations should set out the terms and makeup of a Building Inspectorate. A dedicated National Building Inspectorate would be preferable (the Regulations, after all, are national). However, at the moment the legislation does not confer any duties on the Building Control Authorities at all. They have wide powers but no responsibility.

If the Department insists on the structure of Building Control Authorities within local councils it must set-out, unambiguously, what shall constitute an inspection. It should require the BCAs to make all reasonable attempts to inspect (for example) foundations, substructure, external walls, and so on – a non-exhaustive list could be given. It should require that reports of these inspections be made public (as with planning applications). It should require that all reports, inspections and prosecutions be tabulated and made freely available to the public.

In summary, I would ask that the following be considered: -

• A National Building Inspectorate, examining at least 40% of the buildings under construction
• A system of licensing or registration of builders
• Full prosecutions of any designers or contractors who are negligent in their duties
• An open register of inspections and prosecutions, and reports of inspections made public.

But it would be a start if we were to enforce the laws that already exist, and educate the general public about what they are.

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Your requirement for a full set of construction documentation upon completion is effectively a slice of bureaucracy; it does nothing to police building, but it does give a clear paper trail if something goes wrong. I assume that is its purpose.

However it is strangely similar to a law that already exists. There is a legal requirement under the Safety, Health and Welfare Work (Construction) Regulations for a PSDP (usually the architect) to compile a Safety File for the job, which contains all construction documentation, warranties, certificates and so on. This is required for any building produced “for gain,” which includes speculative housing. It must be presented to the building owner on completion, who has a legal duty to keep this file and present it to any subsequent purchaser. This law has been in force since 1995.

In other words: anyone buying a house or apartment built after 1995 by a property developer has been legally entitled to have every drawing, record and certificate pertaining to that property presented to them upon purchase.

I know many people who moved into speculative dwellings, including members of my own family. I know of no-one who was given these documents (I told them to ask, but in a buyer-lead market people are afraid of rocking the boat and after a single request they generally gave up). Management companies of apartments are often unaware of this requirement. The Safety File is an incredibly powerful piece of legislation. Its application to Priory Hall must be obvious. But it isn’t enforced, it isn’t followed, and it isn’t taken seriously. It’s the system in microcosm.

Ordinary people have not been made aware of what they can or can’t expect when buying or building a house. The laws are not understood. The three strands of legislation (Planning, Health and Safety, and Building Control) total around 1,000 pages. The rules are not made to be understood and so they are not followed.

Enforce the laws that are there, and educate the general public as to what they are. This is essential, regardless of what these regulations eventually end up looking like.

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And finally, a plea.

Please take the submissions you receive on your legislation seriously.

This is not a question of “vested interests,” for example. This is a law that effectively provides that everyone must be hire an architect when their project foes on-site. The profession is ravaged by unemployment, and regulations are being proposed that guarantee work. It’s a lucrative proposal. If architects could do this, they would do it. They simply recognise that they can’t do what this proposal requires.

If the Department believes that architects are well-motivated and honest, take their advice. If it considers that the objections of architects are the self-motivated obfuscations of a self-interested profession… then don’t pass legislation making this profession the policemen of the building industry!

Priory Hall made it clear that the two pillars of the industry most in need of reform were contractors themselves and the Building Control Authorities. This proposal overhauls neither. If this legislation is presumably intended to limit the actions of shoddy builders and of unscrupulous developers – to control them, if you will – why is the most vocal opposition coming from architects and not from builders?

Perhaps the answer to that question is the most instructive of all. I hope it makes you reconsider these proposals.

Yours faithfully

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