Update on implementation of 2014 Building Control Amendment Regulations Carlow Institute of Technology

(29th April 2015)

Kevin Sheridan EurBE MSc CEnv FSCSI, FRICS FIBCI FCIOB FCInstCES,

P Eng, FCABE, CBuildE MICE

President AEEBC

Overview Presentation

•Recap of key provisions of BCAR •Issues affecting clients and Role of Third parties regarding building control process •Design Certifier/AC Role & issues •Implementation issues and problems •Registration of Builders -CIRI registration •Review of BCAR Implementation

•SI 9 of 2014 signed into law by the Minister for the Environment Community & Local Government, into effect from 1 March 2014came Supporting COP issued February 2014 Statutory Instrument S.I. No. 105 of 2014 Building Control (Amendment (NO. 2) Regulations 2014 2 [105] BCA Framework Document

BUILDING CONTROL Amendment Regulations (2014)

1 Recap of key provisions of BCAR

Building Control Acts

Building Regulations

Technical Guidance Documents

Building Control Regulations

- Commencement Notices

- Fire Safety Certificates - Disability Access Certs - 7-day notices - Lodgement of Plans - Design Certificate - Notices of Assignment - Undertaking Certificates - Completion Certificate - Validation by BCA - Inspection Plan - Public Register

Code of Practice Framework

for BCAs

Building Regs and Building Control Regs

• Building Control regulations are different to Building Regulations

• Apart from exempted works, All extensions, material alterations and material changes of use, regardless of floor area, must comply with the Building regulations.

• Building regulations deal with how the building is constructed, whereas the building control regulations deal with the process regarding appointments, notifications, inspection and certification in relation to compliance.

Building Regs and Building Control Regs

• The regulations require that only competent registered building surveyors, registered architects or chartered engineers, can undertake statutory roles in relation to design, inspection and certification in conjunction with a code of practice for inspection.

Key Reference Documents

■ Primary Building Control Regulations ■ SI No.9 of 2014. ■ Code of Practice for Inspecting &

Certifying Buildings & Works. ■ Framework for Building Control

Authorities. ■ Ancillary Certificates.

Regulations and Guidance

• Building Control Act 1990 and 2007

• Building Regulations 1997 –2014

• Building Control Regulations 1997 –2014

• Building Control (Amendment) Regulations 2014

• Planning Regulations

• Code of Practice for Inspecting and Certifying Buildings and Works

• Need to differentiate between “Short” commencement notice application process and full commencement notice process

Regulatory Context

• The BCAR Regulations apply to any development or work in connection with the construction, extension ,alteration, repair or renewal of a building where a Commencement Notice is required to be lodged after March 1st 2014

• The requirements of paragraph (1)(b) shall apply to the following works and buildings —

the design and construction of a new dwelling

works to which Part III applies- Any building works which require a fire safety certificate.

• Design and construction of a new dwelling • An extension to a dwelling involving a total floor area

greater than 40m2. (Cumulative) • Material Alterations (part B) • Material change of use

• • Ensure that any failure of regulation among the stakeholders

• involved –i.e. Building Owners, Designers, Builders etc is detected and remedied in an effective and timely manner.

• • The aim is that the powers of enforcement and prosecution

• . Section 6(4) of the 1990 Act …BCA shall not be under a duty to any person to ensure/verify that the:— • certificate complies with the requirements of .. Act or of regulations or orders made under .. Act,

• Or facts stated in the certificate are true and accurate

BCA Role

A key element in detection is the system of risk analysis, using the online system of notices and documents by BCAs to deploy available resources to target inspection and investigation into higher risk areas

• Oversight using a risk based approach to target those who are non-

compliant. BCA Framework as a tool to standardise response consistency between BCA’s

• DOES THE PROJECT INVOLVE:

• (A) an erection of a building,

• (B) the material alteration of a building,

• (C) the extension of a building, or

• (D) the material change of use of a building

to which the Building Regulations apply.

• S.I No. 496 of 1997 Art 7 (1)

• Buildings or works requiring Planning permission requirement

• Prior extensions from Oct 64 (Cumulative aspect)

•

Commencement Notice Requirements

TO ESTABLISH IF A COMMENCEMENT NOTICE IS REQUIRED-

• Fire Safety Certificates • 11. (1) Subject to sub-article (2) and articles 3 and 6, this • Part applies to— • (a) works in connection with the design and construction of a new building, • (b) works in connection with the material alteration of— • (i) a day centre, • (ii) a building containing a flat, • (iii) a hotel, hostel or guest building, or • (iv) an institutional building, or • (v) a place of assembly, or

• (vi) a shopping centre, but excluding works to such buildings, consisting solely of minor works,

• (d) works in connection with the extension of a building by more than • 25 square metres, • (e) a building as regards which a material change of use takes place, to which the

requirements of Part B of the Second Schedule to the Building Regulations • apply.

Scope of buildings or works requiring New BCA certification- Reference Building Control Regulations 1997

(c) works in connection with the material alteration of a shop, office or industrial building where: (i) additional floor area is being provided within the existing building, or (ii) the building is being subdivided into a number of units for separate occupancy,

• Standard wording-no deviations permitted

• Person signing Design certificate -Certificate of compliance by Design Certifier (for submission with the commencement notice)

• Statutory certifiers must be persons on Building Surveyor/Architect statutory registers or CEng register)

Statutory Forms

• 1.Compliance Appraisal: Applicable parts of Building regulations

• 2. General Arrangement extract of Project drawings showing scope and scale.

• 3. Inspection Plan: Inspection schedule -work which the Certifier(s) will inspect from commencement to completion.

• 4. Testing and Commissioning Schedule: List all tests to support the Ancillary Certification

• 5. Drawings and Documents Schedule: • 6. Ancillary Certificates in Agreed format from other

members of the design team and certificates from specialist sub-contractors.

Detail Design/Commencement –Compliance and Inspection Document

Commencement Process

• Lodgement of Commencement Notice on-line with plans and particulars including Inspection Plan prepared by the Assigned Certifier.

• The following is required for completing the Commencement Notice on the BCMS.

• Nomination of Parties on the BCMS –

• Building Owner

• Design Certifier

• Assigned Certifier

• Builder

Commencement Stage

• Upload supporting Information by the Assigned Certifier

• General Arrangement Drawings

• Preliminary Inspection Plan

• INF-Inspection Notification Framework

• Design Certificate from designer and supporting Ancillary Certificates

• Building Regulation Compliance Report and any Additional Supporting Documents.

What must happen before the building is occupied ?

• A Certificate of Compliance -completion certificate by the Builder/Assigned Certifier.

• Documents showing changes from those originally lodged

• Completed Inspection Plan showing what inspections were undertaken

• Ancillary Certificates on which they relied from specialist designers, subcontractors etc

No work shall commence on site without a valid commencement notice (ie successfully registered by the Building Control Management System).

• Where it applies a Fire Safety Certificate must be granted prior to submission of a Commencement Notice

• Failure to submit a valid commencement notice

can also result in fines or imprisonment.

Commencement Notices

Failure to submit a valid Commencement Notice will affect the possibility of obtaining a Completion Certificate (not possible to get it retrospectively)

Prior Notification process re Prospective Cert of Completion

Submit Plans

Specifications and

Particulars &

Inspection Plan

Not more than 5 weeks

Or

less than 3 Weeks:

Minimum 21 days

notification

Submit Valid Cert of

Compliance (1 day in

advance of Nominated

Day)

Further 7 days at the discretion

of the Building

Authority (within reason)

Place on

Register ?

Building Control Authority Validation Period

• Ensure construction drawings and specification are up to date with revisions uploaded to Building Control Management System.

• Weekly review of Programme & Inspection Plan –notify & Follow-up – consequences for builder and client of delays

• Inspections carried out only by appropriate persons

• Review BCMS uploads.

• Specific time set aside at all site meetings to review –Actions with clear responsibilities

Construction Stage – Review & communicate

Responsibility for Compliance with BCAR &

BRegs

• Primary responsibility for compliance rests in the first instance with building owners, developers/builders, and designers

§

• Not Passive but must exercise diligence in selecting Designer, Assigned Certifier & builder- (re qualifications & appropriate experience) –not just “Yellow Pages” selection • Must enable certifiers to act in independent manner • Must allow adequate time frame & budget • Submit required notices and including change of the assigned certifier or builder to the BCA within 14 days (if applicable) • • Smaller one-off clients are often reliant on local designers and builders •Client requires pro-forma checklists for professionals and contractors to demonstrate that their selection process and compliance is rigorous

Owner Responsibilities

AC role in ensuring QA & QC in accordance

with SI 9 and COP

• AC oversees inspection process and critical records during the construction period.

• Preliminary Inspection Plan including INF

• General arrangement drawings and detailed drawings schedule

• Tests and Certificates Schedule

• Inspection records and documents

• AC carries out on-going uploads of the Compliance and Inspection Record on the BCMS (Building Control Management System).

• Ancillary Certificates

•Employer’s Representative Oversight/Supervision?

Power to order works

Less likely to be a member of the design team

Normally on site in a full time capacity

Processes interim certification

Keeps records

•Assigned Certifier

Inspection

May not order works

May be a member of the design team

No requirement to be on site full time

No financial responsibilities

Keeps records

Acknowledgement C Bradley rpsgroup.com/ireland

Contrasting roles between Assigned Certifier and Employers Representative

Acknowledgement C Bradley rpsgroup.com/ireland

•Employer’s Representative

Employer’s Representative can’t take on another role on the project.

Interaction with Client

Communication

•Assigned Certifier

Assigned Certifier role may also take on another role on the project.

Assigned Certifier may recuse himself/herself from the role!

Communication

Interaction with Building Owner

Contrasting roles between

Assigned Certifier and Employers Representative

Implications of Design Changes following Commencement

• Design Work due for completion must be uploaded

• Implications of contractor request to use alternative process or materials

• Client generated request for change may impact on completion date where prior notification of completion has been submitted to BCA

• Phased Completion- e.g. Houses or apartment blocks requiring separate Commencement Notice

• Separate Building Control Registration for each phase of a building

Progress Meetings

• Pre Tender and Pre-Contract

• The INF- progress

• Clarification required e.g. designers specifying performance criteria rather than specific products

• Each key project stakeholder to report on project status and address project issues, delays and clarifications required

• Inspection Plan- Reviewed

• Progress Meeting Minutes- opportunity to identify changes and assist project work flow .

• Follow-up correspondence

Authorising Payments E.R

• Ensuring that elements are complete (Practical completion ???)

• Were critical elements inspected

• Ensuring that workmanship is adequate (tolerances???)

• Is material fit for purpose? Don’t just rely on CE Marking

• Can you withold payment??

• Is all appropriate documentation & certification available to AC /DC

• Don’t accept undertakings as they may not suffice

• Did third party “interpret” drawings/spec/intentions

• Does “As built” structure follow design

• Have all critical parties signed off on work

DoECLG position-that 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

During Construction BUILDER

Self-Builder can self-nominate as the “Builder” and sign the undertaking and the Certificate of

Compliance on Completion (Part A).

Cost Considerations

• There will generally be a separate AC & DC except on small jobs-

• Professional Fees –certification at different stages

• Coordination of subcontractors & ancillary certifiers for client and builder categories

• Supervision and Inspection costs

• Cost of Tests

• Ancillary fee costs for inspections and certification

• Briefing/Training costs for Client, Professional Team, Contractors, Subcontractors, Suppliers

• Contractor/Subcontractor/sub/sub contractors

• Additional resources – QA, Planners, Supervisors etc

Cost Considerations

• Allowances need to be made in budgets/cost plans and tender documents for Builders role in Inspection Plan

• Inspection Notification Framework

• Testing & Commissioning & Inspection costs

• Certification is the responsibility of the entire project team managed by the Builder/Contractor and the Assigned certifier.

Prequalification of Contractors/Subcontractors

• Understanding of their duties & obligations

• Proposed methodology, programme & organisational structures - auditing mechanisms, QC procedures & individual responsibilities

• All aspects of process from appointment to handover

• Builder’s methodology for ensuring compliance of materials and workmanship with the Building Regulations

• Sample of Builder’s inspection records document

• Control of Supplier and Sub-Contractor Activities eg shop drawings, materials, offsite testing, mock-ups, benchmarking samples

• Keeping of records

• Subcontractors with design – ancillary & design certs, inspections & proof of inspections required by AC

2. Issues involving clients and Role of Third

Parties regarding building process

Inspection, Certification & interdependencies

Builder

Client/ Building Owner

Specialist Trades

Assigned

Certifier

Specialist Designers

Design Certifier

Builder’s Specialist Contractors/ Sub- contractors

Material Suppliers

Local

Authority

BCMS

Designer’s Specialist Contractors/Sub-contractors

Advice to Client

• On Clients responsibility & Risks

• On Statutory approvals prior to commencement (FC & DAC (DAC Preferably at commencement)

• On Consequence of delays & non compliance

• On effects re compliance of existing building e.g. where extensions to earlier construction applies

• Role and responsibility of each of the designers, consultants and parties to the project

• Analysis of individual components of Building Regs (Parts A to M)

Advice to Client- Responsibility Matrix

• Schedule of items included with CN and later

• Key design aspects required for Inspection Plan & INF at tender stage prior to commencement

• Upfront checks and resources & costs associated with process

• Adequate records of compliance

• Communications with all relevant parties including contractor/builder

• Ensure that AC receives all information in the schedule and required ancillary compliance information

Advice to Client -Responsibility Matrix

• Each designer takes account of design, interfaces and inspection process & sign off

• Components with multiple design inputs from various disciplines- e.g. Fire Door

• Changes to General Arrangement drawings (DC & AC responsibilities)

• Third Party impartial review and audit (where required), at agreed stages to ensure QA diligence.

• Role of others (e.g. QS or Builder interpreting drawings)

• Material substitutions

Advice & Checklists

• Commencement Notice checklist

• Comprehensive checks of Legislation, Regulations & Guidance

• Building Regulations Checklists Portfolio

• Building Control Management Systems Report [BCMS Report] Interrelationship with Ancillary designers/ certifiers

• Compliance Matrix

Prequalification of Contractors/Subcontractors

• Tender Issues

• Assessment of contractors competence to carry out the specific work supported by CIRI specific registration

• Assessment of subcontractors competence to carry out the specific work (CIRI)

• Subcontractors/specialist competence (Ancillary Certifiers) Assessment

• Contractors method statement

Assigned Certifier clarification re Building Owner designated person

• Establish:

• Who in the Building Owner organisation is authorised to appoint the various stakeholders, sign all the statutory documentation required and be available when commencement notice is being lodged with the Building Control Management System (BCMS)?

Contract Award

• Ensure that each designated party has the requisite competence to inspect the type of work in question? and are familiar with the construction methods to be able to identify non compliant construction?

• If AC is also the Design Certifier- Issues

• Collateral Warranty arrangement with the Ancillary Certifier(s)?

Importance of Records

• Evidence of Inspections properly recorded including photos & records

• Document verification, validation & retention to demonstrate compliance

• Follow up oral advice in writing

• Retain notes of meetings, conversations, instructions etc

• Retain copies of Certificates

• AC/DC – confirmation others have undertaken inspections according to Plan

• You are relying upon others’ responses and Certificates

§

THE BUILDING OWNER

• The Code of Practice defines 'Building Owner‘ as- the person who has commissioned and paid for the works and who has legal entitlement to have such works carried out on their behalf.”

• Ensure the necessary skills, capacity and experience appropriate to the proposed works.

• Ensure that adequate resources are available

Builder/contractor Specific Risks

• Has the Builder previously been pursued for non compliant work

• Does the design include unusual construction details and is the project size and complexity within the normal range of work carried out by the Builder and all specialist contractors/ sub-contractor?

• Is the tender price too low?

• Are the Builder’s key staff competent and well supervised

• Implications of changes proposed e.g. Interpretations by contractor

• Implications of contractor request to use alternative process or materials

Issues that may cause potential

difficulties/conflict between ER & AC

• Under PCW Employer’s Representative

• Clause 4.4 – Employer’s Representative

• 4.4.1 May give the Contractor

• (1) instructions which are either (a) directions in accordance with the Contract or (b) Change Orders and

• (2) objections in accordance with sub-clause 4.7

• 4.4.2 May give the Contractor or Employer or both

• (1) opinions, assessments, determinations and certificates, in accordance with the Contract and

• (2) other communications [including clarifications] in

• accordance with the Contract or the Employer’s

• Representative considers appropriate

Detail Design/Commencement-Compliance and Inspection Document

• 1.Compliance Appraisal: Applicable parts of Building

regulations

• 2. General Arrangement Extract of Project drawings showing scope and scale.

• 3. Inspection Plan: Inspection schedule -work which the Certifier(s) will inspect from Inspection to completion.

• 4. Testing and Commissioning Schedule: List of all tests to support the Ancillary Certification

• 5. Drawings and Documents Schedule:

• 6. Ancillary Certificates: Agreed format

Progress Meetings

• Pre Tender and Pre-Contract

• The INF- progress

• Clarification required e.g. designers specifying performance criteria rather than specific products

• Each key project stakeholder to report on project status and address project issues, delays and clarifications required

• Inspection Plan- Reviewed

• Progress Meeting Minutes- opportunity to identify changes and assist project work flow .

• Follow-up correspondence

Construction Stage – Review & Communicate

• Ensure construction drawing, specification on site are up to date with revisions uploaded to Building Control Management System.

• Weekly review of Programme & Inspection Plan –notify immediately– consequences for builder and client of delays

• Inspections carried out only by appropriate persons

• Review BCMS uploads.

• Specific time set aside at all site meetings to review

• –Action with clear responsibilities

3 Design Certifier/AC Role & issues

Assigned Certifier’s role (Ref COP)

• In consultation with the members of the design team, and builder plan and oversee the implementation of the inspection plan during construction

• Sign the relevant Statutory Certificates –undertaking at commencement and Certificate of Compliance on completion

• -Co-ordinate the ancillary certification by members of the design team and other relevant bodies

• Identify all design professionals and certificates required in conjunction with the builder

• On termination or relinquishment of their appointment make available to the Building Owner all certification prepared and inspection reports carried out

• Act as the single point of contact with the Building Control Authority during construction

Assigned Certifier

• Needs adequate resources and back-up for emergencies/contingencies

• Is remuneration consistent with workload & risk

• Check if reliable and competent Ancillary Certifiers working as part of the Inspection Team?

• Adequate PI Insurance including PI for all other relevant certifiers

• If A.C is commissioned by Builder ensure impartiality and ensure that AC is not compromised?

• Collateral Warranty arrangement with the Ancillary Certifier(s)?

AC & DC Issues

• If AC is also the Design Certifier is this putting undue pressure undertaking both roles?

(ideally they should be separate people)

• Where applicable design Audits to be undertaken by individual designers as part of their input into the inspection plan over the course of the design or as part of a stage review

• Clarification & caution regarding “designer” role where material substitutions or ER, PM, QS or other parties inadvertently assume a design role

AC & DC Issues

• Certification of Shell and Core Development Works

• Fit Out Contract Works

• Conflicting priorities when AC or DC is required to inspect properties in more than one area/region due to schedule conflicts

• Are there sufficient resources and “back up” for emergencies?

• Is PI insurance adequate including “run off” cover?

• Has adequate time been allowed to complete the project?

• What happens if the completed building does not get registered on the system due to LA dissatisfaction with final building/works?

Risk assessment (COP Guidance) Assigned Certifier

Factors in Determining Inspection Plan

• Type of building, type of construction and expertise of the Builder;

• How complicated or relatively straightforward the method of construction is;

• The speed of construction, or methods of fast track construction.

Inspection Plans

• In the tendering process the Inspection Notification Framework (INF) describes the inspection requirements which need to be carried out and considered in pricing by the Builder

• The finalisation of The Preliminary Inspection Plan also provides required information

• Inspection Plans also sets out the requirement for Ancillary Certification for Specialists, Sub-Contractors and Suppliers

• Advance notice and time for inspections – (say) Min 5 work days

• Re-Inspections/Follow up inspections – (say) Min 3 work days

The Legal Responsibilities of the Assigned Certifier

• Must be satisfied with the general competency of the ancillary certifiers and that the Certificates generally attached the completion documentation lodged

• Completion certs give comfort to the AC re:

Reliance on ancillary certifiers

• The Certificate requires exercise of reasonable skill, care and diligence

• The Completion Certificate is underpinned by Part A, completed by the builder

Assigned Certifier Potential Liabilities

• Contractually to the client

• -To third parties, on the basis of negligence/negligent misrepresentation

• -To the Building Control Authority on the basis of negligence/negligent misrepresentation

• It should be stated that the same principles applied under the old regime, where professionals carry out a professional service

• The “last man standing” situation is possible as occurred before

Issues for consideration

Elephant in the room =Contractual & Civil Liability fears

Statutory Liability

Contractual Liability

Civil Liability

More of an issue

with third parties

May be covered by drafted wording in contract or terms of engagement

Compliance with SI 109

& COP with perhaps no

enforcement issues may

clear the first hurdle

Materials in compliance with regulations

Materials Compliance

• Client generated request for change & interpretations by QS/ER

• Technical Specifications include harmonised European Standards, European Technical Approvals, National Standards & Agrement Certificates

• Reference the harmonised technical standards Within the contract documents and requirements of individual characteristics?

• Local Authority are market surveillance authority

• Onus on manufacturer to comply with declaration

• With CE Marking you must see supporting information

• Receiver of Products obliged to check its

suitability

• Has the products declaration of performance and its suitability of application been checked for all products listed?

4 CIRI registration including Competence issues

64 64

Background

• DoECLG invited CIF to submit proposals relating to voluntary registration system

• Appointment of Competent Builders

• Complaints and Appeals Committee

• CIRI Registration No for Registered Builders

• Commitment to Code of Practice for Inspecting and Certifying Buildings and Works:

– “Builders included on the Construction Industry Register Ireland or equivalent may be regarded as competent for projects consistent with their registration profile”

65 65

Who is Register For?

Designed for construction practitioners including:

– Main contractors and builders who deliver overall projects including sole traders

– Specialist contractors and sub contractors who deliver overall projects and/ or elements of projects

– Other trades who may be engaged by other contractors, sub contractors or by domestic clients

Annual registration required

While not part of CIRI DoECLG position-that 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

During Construction Self-BUILDER

Self-Builder can self-nominate as the “Builder” and sign the undertaking and the Certificate of Compliance on Completion

(Part A).

•Stakeholder Review at DoECLG April 2015 •Targeted Departmental Pro-forma format of Issues/Solutions highlighted by Minister •Stakeholder responses by Mid May •Minister will announces changes in a short time after (about a month) • CIRI board expected to become statutory by end of year • Future of Single (Self Built) housing to be determined •Position of “ practical architects & technicians “ role to be determined

•

BCAR Departmental Review

Summary

•Recap of key provisions of BCAR •Issues affecting clients and Role of Third parties regarding building control process •Design Certifier/AC Role & issues •Implementation issues and problems •Registration of Builders -CIRI registration •Review of BCAR Implementation

Kevin Sheridan EurBE MSc CEnv FSCSI, FRICS FIBCI FCIOB MICE FCABE,

President AEEBC

BUILDING CONTROL Amendment Regulations (2014)

Thank you

Questions

Disclaimer This information is for

training purposes only.

It does not constitute legal or

professional advice.