Oireachtas Joint and Select Committees
Tuesday, 16 October 2012
Joint Oireachtas Committee on Environment, Culture and the Gaeltacht
Building Regulations: Discussion
We will consider the topic of maintaining and enforcing regulations in the building sector with representatives of the Building Regulations Advisory Body and the Department of the Environment, Community and Local Government. I welcome Mr. Aidan O'Connor, a member of the Building Regulations Advisory Body and principal adviser in the architecture and building standards section of the housing and planning division of the Department of the Environment, Community and Local Government; and Mr. Paris Beausang, from the architecture and building standards section.
I wish to draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. However, if witnesses are directed by this committee to cease giving evidence in relation to a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
I also advise them that the opening statement and any other documents they have submitted to the committee will be published on the committee website after this meeting.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in any such way as to make him or her identifiable.
Before commencing with the presentation I wish to say a few words. I thank Mr. O'Connor and Mr. Beausang for attending the committee today in what is a period of interregnum for the BRAB. The old board has completed its term of office and the new one has yet to be appointed so the witnesses are very much manning the stations on their own. The BRAB advises the Minister for the Environment, Community and Local Government on matters relating to building regulations, and it is how these regulations are formulated and proposed and the basis on which advice is given to the Minister we wish to discuss today. In particular, I am interested to hear if the body anticipates developments in the sector and how the regulations can be framed to prevent rather than react to problems as they arise. This is not always possible but perhaps the witnesses might explain to us what efforts are being made in order to address that in so far as is practicable.
The building sector has been hit with a number of serious problems in recent years. The pyrite problem and Priory Hall immediately come to mind. One might reasonably ask how these situations came about and how it happened, when regulations were in place, that these buildings were built with such obvious defects. They have had horrifying consequences for the people who have to bear the brunt of the problem. What other hidden or potential risks exist, and how can we best plan in order to avoid them? Those two cases stand out in our minds. This happened many miles from where I live but one could not help being touched by the misery inflicted on hard-working, honest to God people who, in respect of Priory Hall, are now paying mortgages for properties they vacated more than a year ago. That is gut-wrenching. How was this allowed to happen? Although universal standards exist to be applied, all of a sudden it has ended up in this way. The witnesses might begin by addressing those points.
Mr. Aidan O'Connor:
The Chairman has supplied the introduction of the submission we made. The Building Regulations Advisory Body, or BRAB, was set up under section 14 of the Building Control Act and advises the Minister on related building regulations. The tenure of a board is for five years and it has representatives from key stakeholders in the construction industry in both the public and private sectors. The next BRAB will convene in the coming weeks and will have suitable experts, taken from among people who have responded to the Government's call for expressions of interest from those interested in serving on State boards. BRAB's role, therefore, is to give expert advice on proposed building regulations over a five year period.
Does the Chairman wish me to focus immediately on the issues mentioned or should I flesh out the work the board does?
Mr. Aidan O'Connor:
It is in the information supplied. The Act sets out clear legal standards that have to be met in the building regulations. It states the regulations simply; the builder must comply with health and safety standards for the building. It goes on to provide detailed guidance in the technical guidance documents, sometimes referred to as TGDs, which tell builders how, if they build in accordance with those documents, they are compliant. Builders rely on those very strongly. The burden of responsibility for compliance rests first and foremost on the developers under section 8(3)(a). Designers come under section 8(1)(b) and building owners under section 8(3)(a). The Act covers that. The statutory responsibility is for professionals who design according to the regulations and the responsibility for enforcing compliance rests with the building regulation local authority, over 37 local authorities in the country. There is a cascade of responsibilities. The role of the Minister is to provide regulations. In our daily role we work within the building standards section so we are working on those regulations and on their proposed revision.
BRAB would have had a role in initiating a fresh look at building regulations and asking what should happen. Two studies were made by committees within the body which looked at the regulations and how they could be brought forward. There was a larger, more general study and a small detailed submission and these became the advice on revision to the Minister. To clarify, the Minister does not have any role in the enforcement activity - that is delegated to local authorities. That issue is sometimes misunderstood. Developers and owners are responsible first and foremost because they initiate the work and compliance rests clearly on them. In this regard the Act enables a local authority to issue an enforcement notice which is issued under the Building Control Act.
I refer to Priory Hall. It is interesting to remember that the action was taken under the Fire Safety Act, another piece of legislation, which took priority over the work the building control was developing in Dublin City Council. I can return to that.
Defects have to be remediated. There are statutory requirements which become the measure by which one can state the correct way to deal with a matter if there is a dispute on site or in the course of construction. The requirement becomes the reference whereby the issue can be resolved on site. If it does not get resolved there the result might be legal action, as we outlined in detail, and the matter can end up in the High Court, as we know. However, there are other issues which could be dealt with beforehand. The Act gives local authorities powers to scrutinise proposals, inspect work in progress, serve enforcement notices for non-compliance under the Building Control Act, institute proceedings for breaches of regulations and seek High Court injunctions for non-compliance. If there is failure to comply there is a fine of €5,000 on summary prosecution which can rise to €50,000, and imprisonment. One can be both fined and imprisoned, in a first case for six months and in a second for up to two years.
A target has been set for inspection rates of between 12% and 15%. This is more like an audit inspection approach for any building that has a valid commencement notice. That notice triggers the action to be taken and whether there will be an inspection on site. Statistics show that, in general, there is an average inspection rate of about 24% on all buildings taken into account. It is up to the local authorities to apply their endeavours in this regard. The Building Control Act also provides for a statutory process in regard to fire safety certificates and disability access. Both are dealt with as separate items. It was on the fire safety certificate side that action was taken in the case of Priory Hall. That highlights most of the points.
In the proposed new regulations, we are to commence section 6(2)(a)(i) of the Building Control Act 1990, a section that was never enacted. It requires the submission to building control authorities of certificates of compliance that certify whether a building is in compliance with the regulations. That obviously did not happen in the cases mentioned. What happened was that others filled that gap with opinions of compliance. We can go into that in further detail. The proposals aim to change the regulations by requiring the submission of drawings and documentation that demonstrate compliance with the building regulations. There is a statutory form of the certificate of compliance. We have worked this through with the stakeholders, we have an agreement and the Minister is bringing that forward. The statutory forms will have regulations governing how they are used. There is a code of practice lying behind this. There is also an engagement with the City and County Managers Association, with a view to taking a regionalised shared services approach model to the administration of building control. We will then have standardised approaches and common protocols.
The reason for this is to try to ensure some kind of nationwide consistency. Experience with disability access certificates, DACs, reinforces our belief in the need for that because if something is not adequately described or defined, then people can be very free in their interpretation of what is intended.
The proposed regulations were released for public consultation earlier in the year. We received over 500 submissions in respect of them, which was a record. Normally, we would receive approximately 20 or 30 submissions in connection with matters of this nature. The Department reviewed these submissions and consulted directly with the key stakeholders who put some of them forward. We then developed a stakeholder group in order to advance the detail. We also established a study group which was tasked with defining the code of practice relating to how the legislation will be applied.
To put it in its simplest form, it involves a chain of responsibility. The designer will take responsibility for the design being compliant and the contractor will take responsibility for building what is envisaged in compliance with the regulations. The latter will be able to rely on the former's drawings and specifications in order to ensure compliance. There will also be a separate assigned certifier who will be a competent professional charged with overseeing projects and ensuring that the requisite standards are applied. Effectively, this person will act as an independent assessor in respect of those standards. The reference in this regard will be the code of practice. An inspection programme will be established by the certifier and this will be in place for the entirety of the project. Certificates and ancillary certificates will be supplied in order to support all of the relevant detail. Effectively, there will be a large file in respect of each job. The detail to which I refer will be submitted to local authorities by electronic means. This is how we see the system being strengthened.
Everybody knows the history of what occurred at Priory Hall so I will not go into it. However, what happened there was treated as a fire safety issue. There is an ongoing resolution process in respect of Priory Hall, which is being conducted by Mr. Justice Joseph Finnegan and in which the parties are still actively involved. This process arose in the context of the adjournment of an appeal which Dublin City Council brought in respect of obtaining an order from the High Court regarding the payment of costs. The Department understands that the appeal is due for mention before the Supreme Court on 18 October next. Given that the matter is before the courts, it would not be appropriate for us to comment on it. I will state that some work appears to be going on and that this is being led by Mr. Justice Finnegan. We hope this represents an opportunity to develop matters.
Mr. Aidan O'Connor:
It was the fault of the contractor and also the fault of those who were overseeing his activities. The errors, mistakes, oversights or whatever were due to the way Priory Hall was built. The omission of the fire-stopping insulation within the cavity walls is the issue that really brought everything into focus.
Is there also an issue in the context of materials? Those who were involved in construction during the boom or who are constructing one-off dwellings at present will inform one that a great many regulations apply. People make conscientious efforts to comply with those regulations, not on foot of bureaucratic direction but because they are obliged to do so. Compliance with the regulations is in everyone's best interests. At what stage did someone visit Priory Hall in order to discover whether the regulations were being adhered to? What examinations were carried out and what reports were compiled on foot of such examinations? When the problem became obvious, what efforts were made to identify the companies, etc., from which the materials used at Priory Hall were sourced and to test those materials?
Mr. Aidan O'Connor:
To clarify, the Department does not have a role in the context of inspecting sites. At that time people could apply to obtain the first-time buyers' grant or to access whatever schemes were available. An inspection was carried out by one of the Department's inspectorates and this focused on floor area compliance. Under the definition which then existed, the floor area defined the threshold relating to whether one's property would be exempt from stamp duty. The inspection to which I refer was carried out on behalf of the Revenue Commissioners. At that stage there was a tax exemption scheme in place and, effectively, this was for first-time buyers. An inspector from the Department visited the site but that was to examine the position with regard to floor areas. His inspection was not for building control purposes. The certificate issued in respect of the floor area inspection stipulates that it is not for such purposes. The reason for this is that building control is clearly defined as being the responsibility of local authorities. The Minister and the local authorities must, in a way, act separately and respect each other's areas of responsibility.
Defects were first noticed internally as a result of exploratory that was work carried out. Effectively, this was at completion and occupation stage. Dublin City Council discovered a number of issues and obliged the contractor to return to review these. It became concerned with the lack of fire stopping in the cavity walls. The internal structure in those units is timber frame but the outer skin is brick. Some parts at the top of the building have timber cladding. For the most part, however, there is an outer skin of brick. There were concerns about how this skin was fixed to the building. Where apartments are separate from each other, there would have to be fire stopping in place around each of them and concerns also arose in respect of this matter. To put it very simply, Part B of the building control regulations requires compartmentalisation. The latter is taken very seriously by anyone who is involved in construction because compartmentalisation must be maintained in order that a fire in one unit will not spread to others. If there is a fire in a structure that is properly compartmentalised, then the emergency services can focus on saving those who are in the unit in which the fire breaks out.
The absence of a fire-stopping material in the cavity walls at Priory Hall became a serious issue. The way in which the external wall was fixed to the internal walls of the structure also gave rise to questions. The former is supposed to be attached to the latter at the points at which the structure is strongest. A procedure exists in this regard. The Department was instrumental in having the timber frame construction consortium report carried out in 2002 - it was published in 2003 - which indicated that any such construction applying to multiple units would have to be done according to the manufacturer's requirements and specifications. The latter are quite detailed. I am only offering an opinion here but I must state that if fire stopping material was absent, then it was not done in accordance with the manufacturer's requirements and specifications.
During the construction process, the local authority had a role to play. What was the level of interaction between the Department and the local authority? Why were the defects not noticed until construction had been completed? It is reasonable to assume that most of the people who purchased units in Priory Hall obtained mortgages. One of the conditions with regard to drawing down a mortgage is that an engineer or some appropriately qualified individual must sign off in respect of the various phases of construction of the property to be purchased.
With so many people signing off, such as the local authority, the Department or the engineers employed by the lending banks, why were defects only noticed post-construction?
I meant in terms of the materials. For example, if I open a quarry in west Cork and I use material from that quarry, who inspects my quarry? What are the qualifications of those who are despatched to test these materials?
Mr. Aidan O'Connor:
There are national standards for materials and what materials can be used, in the abstract, so to speak. These are performance standards. The manufacturers must demonstrate that their materials are compliant. The Chairman refers to extracting material from a quarry. This is covered by the Department of Jobs, Enterprise and Innovation because the quarry is a business, effectively. However, quarries are required to test materials because they are a business selling a product. It comes down to a point of sale issue. They are selling a material which, although it is a component part, is part of the building structure. It is not like a window or other manufactured item but the quarried stone is being used. The specification would be No. 804 which the Department set as a standard and many local authorities followed that standard. The NRA also uses that standard. It was regarded as a premium labelling for stone and it is to do with the size of the stone. The number 804 became the shorthand for high-quality stone - in other words, such stone did not contain an imperfection or any form of defect. Builders relied on that standard. Sometimes builders used other standards of stone such as three-inch down. No. 804 was often the standard specified when writing specifications and this would be expected to be a clean stone that can be compacted and laid to compacted level. A concrete floor could then be laid on top of that and this floor often floats on top of it. The problem with the pyrite was that the pyrite contaminant was sold with stone like that.
My questions will follow the same line of questioning as the Chairman's. I refer to the certificates of compliance. Those, in the main, relate to compliance with the building regulations and with the planning permission that may have been granted for the development. Who polices the certification of compliance with the building regulations on behalf of the Department? Is it the case that the Department is dependent on insurance companies to inform it of the lack of regard for those same regulations as certified by certain individuals? It is ironic that we are talking about this on a day when the reform of local government is spoken about, and "spoken about" is the operative phrase. Each local authority has a planning enforcement officer but the local authorities do not have sufficient funding to allow these officers to police planning in the desired right and proper manner. This has been to our detriment in the past and it needs to be addressed in the future, if that role is to be taken seriously. These professionals certify buildings to be compliant with planning regulations. They also carry out other functions such as fire safety. If it is the case that local authorities in the past and to date are dependent on independent persons to vouch for this compliance, that is a sorry state that needs to be addressed. What is the opinion of the Department in that regard?
Mr. Aidan O'Connor:
The Building Control Act does not recognise them either. I mentioned section 6 of the Act. A requirement for statutory certificates of compliance is one of the reforms we are introducing. This will be a document which is to be signed to state that the building is in compliance and the person signing will explain how that conclusion was reached and there will be a supporting document. In the past the system was one of opinions of compliance-----
Mr. Aidan O'Connor:
If I may just deal with what we had, the opinions of compliance were arrived at through the professional bodies in their dealings with the Law Society in order to support conveyancing. It was an opinion of compliance used for conveyancing purposes. They actually do not have any part in the Act, except that they appear to be very close to what the Act referred to as statutory certificates. Unfortunately, that section, section 6, of the Act was not implemented.
Are the proposals to enhance or strengthen the Act sufficient to ensure this situation does not arise again? Mr. O'Connor said this provision was only to accommodate the legal profession and not necessarily the health and safety regulations.
Mr. Aidan O'Connor:
I did not say anything about that. I just said it was an arrangement between the legal professions and the other professions to achieve conveyancing. What we are proposing now is the implementation of that part of the Act which should have been implemented before. The certificates will now be statutory. We have done a lot of work to explain how they work and who has to have input into the process. Effectively, this proposal sets a chain of responsibility in any work carried out and at every level. There has to be a chain of responsibility so that one can depend on the specifications being correct, for example. An opinion of compliance, in my opinion, was checking whether a building was built in that way. Very responsible professionals would say "Yes" or "No".
There would be very many - the majority of whom are upstanding - whose opinion proved to be completely correct. However, I am nervous that regulations laid down by the Department were being used by the legal profession in order to fast-track the conveyancing of property. Mr. O'Connor has said that will be addressed in this proposal and we await the result. I refer to the local authority planning enforcement officers who have not been sufficiently resourced either in the past, present or future, going on what I have read today. They need to be properly resourced to carry out their duties and that in itself would ensure there would be no more Priory Halls. Does Mr. O'Connor share my opinion? I would like to hear his view.
Mr. Aidan O'Connor:
The board is trying to strengthen the system at a time when there are problems with resources. There is a proposal for local authorities to share services. For example, one might have one lead authority and a few other authorities clustered around, thus enabling them to focus on a risk-based analysis.
I wish to discuss the point made by Deputy Cowen. When someone is in dereliction of his or her duty - and quite clearly that was the case here - is there a provision for ministerial sanction? Can the Minister punish the authority for failing to apply standards or for not noticing defects? Does the buck stop with the Minister? Can he or she apply a sanction because someone else or some other body did not do its job?
We had the issue of pyrite, the problem in Priory Hall and then the estate in Longford that had a gas leak. There are plenty more examples. One of the common denominators is that the people who are left holding the mortgage are the people who purchased. Clearly, there is a lack of protection. If we do not learn from this problem and do not respond by putting suitable protections in place, we will repeat it. Does the board accept that the fault lies with the fact that anyone can open up a builders' yard and start building? Does it accept there is a need for builders to have a licence, which they can lose if they breach regulations? Other than that solution I do not see how, even with all of the building and planning regulations, we will get to grips with the problem. I would like to hear the board's views on my suggestion.
Kildare is a sizeable county that has continued to develop, and its population has trebled between the early 1970s and now. My experience of such development has been that the local authority - and I do not think the scenario is different anywhere else - acts in its own interest and it looks at what it will assume responsibility for in the end. For example, the board stated that between 12% and 15% of buildings are to be inspected. Apartment blocks are not taken in charge by local authorities. They do not ensure they have the same level of oversight for apartment blocks as they do for houses because shared spaces will ultimately be taken in charge by the local authorities. If they do prioritise, in my experience, it tends to be the apartments that will be taken in charge by the local authority at some point in the future that get the kind of scrutiny that one hopes all buildings would receive. Has the board examined the inspection mix? There is less of a legacy of building apartments here and, possibly, less competence in building them. They have come to the fore in terms of being more likely to be demolished and so on.
Was a red flag flown at any point with regard to the exposure and risk associated with the fact that section 6(2)(a)(i) was not part of the regime? Many people will be exposed by virtue of the fact that opinions of competence are a lower tier and are not the same measurement as something that is statutorily based. Does that have consequences for people who have already gone through the approval process and own their houses but discover deficiencies? Is there a get-out-of-jail-free clause as a result of the lower standard being applied?
Technical guidance was provided when the pyrite problem was identified. Does the board automatically provide regulations in such cases? How do problems and lower standards reach the board's radar? There are 37 local authorities. Mr. O'Connor talked about common protocols but each local authority is a law unto itself and has a differing range of staff. Counties whose populations have grown in recent years have lower staffing levels than counties with more static population growth. The planning section was one section that needed to grow but there was a staff embargo. Will the board state that there are deficiencies in some local authorities in terms of staffing levels?
Mr. Aidan O'Connor:
The Deputy asked quite a number of questions. She mentioned the consumer protection aspect of the Priory Hall and Longford cases. We are concerned about the lack of consumer protection under which people operated, and there is no excuse for that. The regulations do not excuse such behaviour; the board is quite clear about that. Unfortunately, when one undertakes the legal process, everything is stalled until the matter is resolved.
The Deputy asked about a register of licensed builders. We will introduce a register of contractors, which is another reform mechanism that I should have mentioned earlier. We have brought forward regulations but the Minister has yet to sign them. We have introduced a code of practice, which may be a growing document. There will be a period of implementation for the regulations when they are introduced. We have already started the process of examining how we can register contractors and are talking to the industry.
Mr. Aidan O'Connor:
It will end up being legislation but it will start with an attempt to establish what is out there and how we can regulate it. In order words, we will examine the contractors and their standards. We have also done this with the professions through the Building Control Act. It will be something like that. It will be based on competencies, training and evidence that their skill sets are brought up to date. To be fair to the industry, some work has been done. HomeBond produced guidance documentation in the form of a "Right on the Site" folder and provides regular updates. When the board introduced regulation HomeBond provided copies to its members. Part of the industry disseminated information. HomeBond did it to reduce the number of claims but it also provided a good service. There are other issues that I will not go into now. There will be a register of builders.
The Deputy mentioned large population changes and how this has transformed Kildare. That was the effect of Dublin's urbanisation and commuter traffic and of people settling in the region. It was an inevitable part of urbanisation.
Did it get enough priority? I think the Deputy highlighted the issue.
Deputy Catherine Murphy raised questions on the local authority process of taking in charge. It would not be good enough that local authorities that prioritise only the areas that they will be taking in charge and must pay for, such as the resurfacing of the road. The issue is wider than that. The taking in charge would be the responsibility of the local area engineer and the depots would take on the job of repairs. They want to get it right at that point. They follow a manual, the site work, and external works document produced by the Department of the Environment, Community and Local Government.
Mr. Aidan O'Connor:
I will come to that question. I do not accept priority should be given to the areas that will be taken into public control. That is looking at the issue in cost terms. Cost is a good driver in focusing people's attention, but the council is dealing with regulations so they should take a sample across the range.
Deputy Murphy asked about the mix of inspections. I think that may be part of the problem. The council provided figures to the local government section of the Department to establish whether they met the 15% rate of inspection; however, when one looks into it further, what they inspected was never defined. There was a lack of definition of inspections. One would need to trawl through the various sections of the local authority to see what each did. The fire officer may have looked at one element while the building control section might have considered the needs of people with disabilities, but they never followed a comprehensive list. We are still without that basic data. We are making an effort to try to get the data and separate it so that one knows the mix covered in the inspections. I know it seems the Deputy has asked a simple question, but it is vitally important to know what was actually looked at. Often inspections are recorded by either number or by date but not by what was inspected.
The mix of what is inspected is incredibly important. If I am correct, inspections were carried out on the estates that will ultimately end up as the responsibility of the local authority, but apartment blocks were not in that category. One will see where I am coming from. There would be a higher incidence of apartments not being inspected than houses.
Mr. Aidan O'Connor:
Inspections should apply to all buildings right across the sector, including offices, places of work and so on. It is not a sectoral rule. We were encouraged by the planning section which was seeking higher densities to build apartments. The planning section considered that one way of dealing with higher densities was to build apartment blocks. Many issues should have been dealt with then. Unfortunately, they were not. The multi-unit developments legislation tried to deal with apartments when it became clear that builders were setting up their own companies to manage the building, rather than residents, companies. That has now been changed. It is a requirement that the management company be taken over by the residents and occupiers of the building.
There should have been a red flag system. As far as I am aware I do not think there was a red flag procedure. We are required to conduct a market surveillance for Europe and we are setting up a red flag procedure. When we become aware of a material that is known to be problematic, we red-flag it to local authorities. We have done that on a number of different materials, such as plaster board, hollow steel sections and so on.
Mr. Aidan O'Connor:
I was asked for my opinion on compliance, pyrite and the role of the local authorities.
It is clear to me that the opinion of compliance was just that, an opinion. When one reads the documentation, there were often five to seven different opinions. Let me give an example. In one report it stated, "On the day I saw it, it was all finished and it seemed to be okay." The person did not see anything and was not able to see what had been done. That was one form of compliance. That should have been a red flag in itself. Should it have been a red flag to the legal profession?
There were several levels of opinion on compliance. Some stated that the person who designed it, supervised it, inspected it and listed the number of inspections would provide the most comprehensive system of inspections. I believe many people did do that with the best of intentions. I am not casting aspersions on them but some took a lighter approach. When it operated in the way it operated how could one really enforce the regulations with that mechanism? That is the reason we are bringing in enforcement regulations.
The original reason I was invited to appear before the joint committee is that the chairman of the BRAB could not make it and I am taking his place. The board's role was to advise the Minister on the issues that it considered should be regulated as well as processes such as the production line issues that the Department does. There is also the updating of the regulations - Part A, Part B, Part C and so on. There is a great deal of updating of Part L dealing with energy efficiencies.
The opinions on compliance were not part of the building control Acts but were often perceived to be. In many ways the consumer drew comfort from them as a protection. One would want to look at the different forms to see which of them one would be happy with. We are replacing that provision on new construction with the statutory certificates of compliance, which are quite detailed forms that must be signed off and a final certificate provided at the end. There are staged signing offs with a final certification at the end. That will have to be accompanied by supporting documentation with ancillary certificates. All the manufacturers' warranties will be included.
The local authorities are not responsible for certifying compliance. The person who does the work has to show that it is compliant with the regulations. The manufacturers of a product have to show the product they are selling is compliant. It is not the role of the local authority to be the arbiter. If persons seek to have a definition of their product they can go the National Standards Authority of Ireland, NSAI, or the Irish Agrément Board, which is part of NSAI, to seek a certificate to state exactly what the product is suitable for. We are reliant on the person putting the item up for sale to do that. The standards procedures are in place and the manufacturer must establish that its products meet the standards. The local authority or the Government does not become involved in that.
We have been discussing Priory Hall, which is in my constituency. Last Saturday was the anniversary of the evacuation of Priory Hall. Mr. O'Connor stated that at an early stage in the construction of Priory Hall, an inspector from the Department of the Environment, Community and Local Government visited the site and carried out some inspections and made some findings. Did he notify the local authority, Dublin City Council, of his findings at that time? Will Mr. O'Connor answer it now before I put further questions to him?
On compliance certificates and the certification process in general, Oppermann Associates, one of the largest architect firms in Dublin, carried out the certification process for Priory Hall. It subsequently emerged that the electrical wiring work on the estate was substandard and dangerous and gas fittings did not include isolation handles to enable people to switch off the gas supply in the event of a fire. If a fire had broken out, it would have developed into a raging inferno, not only because the brickwork did not have fire insulation but also owing to other serious defects in the construction. These dangerous defects were not highlighted in the certification process.
The comment in the report that much could be done to improve the system from a regulatory perspective is the understatement of the century. A vast amount of work must be done to improve the system. May members raise questions about the new building regulations?
Do the new building regulations effectively mean we are moving to another form of self-certification process? The self-certification system in operation is not statutory or mandatory. This type of light-touch regulation is the reason we have problems at Priory Hall and on other similar estates. What inspections will be carried out under the new building control regulations? While I welcome the decision to make them mandatory, what will be the nature of the inspections? Will a random sample of works be inspected?
I do not believe the figure for inspection rates - 12% to 15% - is correct. From my time in Dublin City Council, I believe the inspection rate was closer to 5%. I will leave that issue to one side as it is in the past, although we must learn from past mistakes. In Northern Ireland, where all sites are inspected, cases such as Priory Hall or those involving the many other problems we are experiencing do not arise. Will we adopt a system similar to that in place in the North or will we retain the self-certification model? If we choose the latter, is there a danger we will repeat the mistakes of the past if there is another boom in ten or 15 years?
Mr. Aidan O'Connor:
The Deputy referred to electrical items having proved faulty. The first certificate required for electrical installations is the Register of Electrical Contractors of Ireland, RECI, certificate. The ESB is not supposed to provide a power supply until it has received a RECI certificate from the relevant electrician stating the electrical work has been completed in compliance with the code of practice for electrical installations.
Mr. Aidan O'Connor:
Certainly. The Deputy is raising a bigger issue when he states a RECI certificate was somehow issued and the ESB provided a connection where something was faulty. I was not aware of that. If that is the case, one had a chain of irresponsibility rather than a chain of responsibility.
Mr. Aidan O'Connor:
In addition to the RECI certificate, one also has the architects certifying the work. While I do not dispute that was the case, one needs to go through the process and each person who completed the installation. For example, an issue arises if a person installed the gas fittings and had Bord Gáis supply gas. The architect certified for design and construction and issued a certificate of compliance at the end of the work. Issues also arise in this regard, but I do not want to comment on them as cases may arise in the future. There is an issue to be answered. If the Deputy remembers the history of the case, he will know we were very clear on that issue.
The Deputy asked if the new regulations amounted to one regulation replacing another and spoke about self-certification as if it was a means of absolving one's self of responsibility.
Mr. Aidan O'Connor:
Anyone doing this would be signing away his or her career. If a designer signs and states the design is in compliance and it is shown not to be so, he or she will be brought to the designer body, for example, the representative body for engineers or architects, each of which will have a practice committee, and it will be required to take action. We have tightened up in that regard already.
Mr. Aidan O'Connor:
A building control local authority inspection regime will determine the level of inspection required on the basis of risk or the scale of a development. It will make the choice. The code of practice underpinning this documentation, which is akin to a checklist, will highlight what the local authority should do. We are seeking an assigned certifier. A person who operates as an assigned certifier must be competent, as listed in the Building Control and Multi-Unit Developments Acts, which refer to the competence of certain professionals. The certifier may certify the work being carried out by the contractor which he or she is supervising. Under the code of practice, the certifier will have a list of inspections, on which he or she should follow through. If a problem arises or the certifier is refused permission to inspect an item, this must be flagged, which could result in the certifier having to resign from the position rather than certifying the work. In such circumstances, the local authority is immediately alerted and a replacement certifier must be found. Under the new system, certification will mean precisely that.
The Deputy has indicated the new system still amounts to self-certification. One must consider the principle we followed in developing the system, namely, that one must take responsibility for the area of work in which one is engaged. This applies to the architect, engineer, surveyor, electrical contractor, gas installer, timber frame installer and all other suppliers of services, all of whom must take responsibility for the services they provide. Self-certification requires people to put their name on the line. It will not involve words being used in a way that can be misinterpreted. It is not the case that it offers some level of comfort.
Mr. Aidan O'Connor:
No; the supplier will have ways of substantiating the statement being made. For example, where a person is on site and sees something, perhaps in someone else's work or a pre-assembled item, he or she will need to have documentation to back it up. A series of documents will be required. One does not want people to provide a bundle of material. Instead, we want to have a clear certificate indicating who signed off on the work, his or her competence, the work in which he or she was involved and the areas he or she supervised and for which he or she takes responsibility. The assigned certifier and builder take responsibility at the completion stage when they both sign a common certificate. There is, therefore, no excuse in terms of who is responsible.
Who was responsible for the poor electrical installation at Priory Hall?
We know there were people who then said it was okay. They were irresponsible but we then try to find out who was responsible for it. There must be a level of responsibility in any procedure, and this is where we are requiring it. In referring to self-certification Deputy Kenny seems to imply that is an easier form, but it is not; it will be meticulous. The code of practice in that will spell that out. A checklist of the inspection regimes required will be prepared in advance of construction starting. Some of them will be periodic and others will be at milestone stages - that is, at certain stages of construction.
I thank Mr. O'Connor and Mr. Beausang for attending and giving us a briefing. I am sorry I missed the earlier part of it but I was following the debate elsewhere.
Mr. O'Connor spoke about regulation, compliance and certification. He said the objective was to strengthen the system, but how does he equate that with the exclusion of architectural technicians from the list of professional people who are entitled to certify? Is that a weakness in the Act? Building regulation compliance is not about aesthetics; that is only part of it. It is about the technical aspects in terms of the quality and quantity of what goes into the building. Is it a weakness in the Act that these people have been left off the list of professionals who are entitled to certify, and does he believe that should be put right?
Mr. O'Connor said that the people who take responsibility for certification are signing away their careers. Is it not a correct assumption to make that the careers of architectural technicians have been signed away with this legislation? I would like to hear Mr. O'Connor's opinion on that. It is about the quality and the calibre of the people who carry out the inspections.
Mr. Aidan O'Connor:
That relates to the registration of professions. A limited number of professions are registered under the Building Control Act. Engineers are regulated under an engineering Act of 1969; therefore, they were registered beforehand. In terms of the registration of professionals, some of that followed from European directives. There was scope to register within the Building Control Act. I might add that that was before my time. They have been registered. A great deal of work went into that over a long period.
A number of options were offered to people not on the register. They could apply to be on the register of architects, building surveyors or engineers. They could apply to those institutes for membership, and quite a number of people have taken up that offer. Initially, their position was to question the reason they could not be recognised. Some were without training but became very technically proficient through experience. This is not a reflection on their proficiency; it is about having an identifiable form of competency. The issue is competency.
The architectural technicians and architectural technologists are not being excluded. They have options to make their application to one of those recognised bodies, and there are many routes they can take. They can go to an independent body such as UCD, which operates a professional course for registration, or register with the architect's, building control or engineer's institutes. Some of them have done that, and some of the people who met us-----
Is Mr. O'Connor questioning their qualifications to some degree? These are people who have done rigorous study and completed a degree course. They are qualified. They are different from the architects who are covered under the grandfather clause; I am not entering into that debate.
These are professionals in their own right who have a specific purpose and are qualified, yet they have been taken off the list. One of them is on the BRAB although I do not know whether she is still a member. In effect, Mr. O'Connor is saying these people are not qualified to do the job. They have degrees. They are professional people in their own right. They have a professional task to do, and they are capable of doing it.
Mr. Aidan O'Connor:
To be clear, that is a United Kingdom charter. "Charter" does not necessarily equate with a chartered engineer in Engineers Ireland. We are getting into a complex area of comparable degrees. I am not underestimating their contribution. I have the highest regard for people who come through the architectural technician courses in the various institutes of technology. They come out with outstanding results. It is a degree status. It is not at the same level as a chartered engineer, a registered architect or a registered building surveyor. Those who have brought it to that level and who have undertaken those examinations have joined those various bodies and are now practising.
The people the Deputy mentioned who are on the BRAB have dual membership within one of the professional bodies as well as their relationship with the CIAT. We met with representatives of the CIAT and went into a good deal of detail. I thought we explained the position but they took umbrage when the matter was referred to the Minister to be signed. What did they think was the process? It was going to lead to that. We have met with those people. People in those positions can apply to the recognised bodies to become an applicant in one of those bodies. Some opt for the architectural body and others opt for the building surveyor body, while some opt for the engineering one. Engineers usually opt for the engineering body, and it is chartered engineers in that case. The chartered engineer is at a very reputable and responsible level. It is a matter of trying to establish levels of responsibility. We use the levels of responsibility recognised and allowed under the various Acts.
For clarity purposes, the multi-unit developments, MUDs, legislation brought before the Houses by the Minister for Justice and Equality examined what can define people who should be suitable for signing off on the various aspects of the MUDs Act and came down in favour of the Building Control Act and the supporting engineers Act, which is a separate one but is often in parallel. It defined that as well, and we define it in these regulations. It is not to prevent the fine work being done. I stated that there were ancillary certificates and if we take the role of an architectural technologist, for example, in facade design or something in a contemporary building, they might be terrific at that. They will be signing off on that because someone else who does not have that level of knowledge will not be able to sign off on it. They will require a sign off in terms of a subsidiary or ancillary certificate.
I suggest to Mr. O'Connor that if not his organisation then the Department has made an elementary mistake in leaving those people off the list and that it is not prepared to correct that mistake because it would be an admission that it was wrong from the outset. It is rather strange that these people who are highly qualified are not allowed to work in Cavan but can work in Derry or Tyrone in the North of Ireland, in other words, they can work in Britain and in Europe. They have highly recognised degrees yet that is not recognised here, and the witnesses are removing them from the list. That adds further to the theory that in dealing with the architects Mr. O'Connor's organisation is more into structure and aesthetics while the chartered technicians are more into quantity, quality and what goes into the building, which would seem to indicate that the witnesses are all show and no substance.
Mr. Aidan O'Connor:
Building surveyors are very much involved in the detail of building construction. One only has to look at their core curriculum to see that. I cannot accept the assertion the Deputy is making. We have not divided them off. As the Building Control Act had a recognition of registers they are now seeking to get their grouping registered, but that is a separate process.
There is an existing register and we are using that. If they wish to suggest other measures as to how they should be recognised or to seek equal recognition with other professions, there is a way to do so, but that is a registration issue, not a building control issue. We are going with the building control tools we have. It is not fair to state that we are dismissing them. We have worked with them and view them as having an important role to play, albeit a subsidiary role. We want to have someone who will oversee all of that and state that this is how the certification system works.
Mr. Aidan O'Connor:
No, absolutely not. I anticipate they will find particular work in this respect. This is much more demanding, in that one must now have drawings that show building control compliance when one starts a job and not as one works through the job. One will be obliged to submit building-control-compliant drawings at one's commencement notice. This will mean much more work upfront. From a technological point of view, there will be much more work, as everything must be defined. It will not simply be a wall of whatever kind. Everything will be specified in detail - the form of construction, the form of insulation, the form of firestop, etc. Detail will be required.
I thank Mr. O'Connor. As a last word, I note that as architectural technicians stand qualified at present, they will not be included. They must go through a process, as the degree or qualification they have at present is not sufficient. Mr. O'Connor is talking about being obliged to register and undertake other courses to be acceptable.
I thank Mr. O'Connor, who has covered a lot of what I had intended to ask him. However, I wish to flag a problem I have in this regard to the board, which may be aware of it, namely, the lack of accountability at local authority level. Perhaps all that will change with today's announcement. I refer to my experiences in respect of individual jobs involving people who have approached me. Such people received housing grants but a complete mess was made of the work even though the council was meant to oversee it. In one case, it did by looking in the window, turning around and walking away again. Ultimately, the person who received the grant could not use a wheelchair in the house and while that person has tried to get another grant, it still is all up in a heap. On a slightly larger scale - that is, as large as it gets where I come from in west County Roscommon - a couple of years after an estate of approximately 40 houses was built, it became obvious there was a problem. In one case, there was a crack that was approximately six inches wide at the top of the building and another that was approximately one inch wide at the bottom, which had been filled in with Polyfilla to cover them up. I approached the council to inquire whether it had been keeping an eye on what was going on. The response I received was yes, someone had been sent out to have a look at it. To this day, I have not actually managed to talk to the person in question and do not know whether he or she ever existed. While I was told that someone went out to the site, the council could never arrange for me to talk to that person. This has happened numerous times because people approach elected representatives about it and I am sure every member present has been approached. Mr. O'Connor has stated the new regime will not be self-certification or anything like that but ultimately, when something is done wrongly, who will enforce it? At present, local authorities will not even act as enforcers in respect of money they are spending themselves.
Mr. Aidan O'Connor:
On the question of local authority enforcement, it is correct that it is up to a local authority to enforce the regulations. Such enforcement takes place on the basis of a number of inspections and identification of the issues. There will now be records kept of inspections. There will be a requirement for a local authority to make sure the system is robust. This is the common protocol and measures of which I spoke will fall to us to set out in conjunction with the city and county managers' organisation. The identification of the type of inspection should also be recorded. Consequently, it will not be enough to state that one looked through the window, as that does not constitute an inspection and should not be allowed to be so. It should be the case that one went out and saw the crack on the gable, which is in fact six inches wide at the top, that it now has been identified and that the contractor must now rectify that mistake to avoid appearing in court with an enforcement order. This is what must happen now. It must be consequential and cannot be comfortable, cushy or cosy. It must be quite professional, detached and exact, and local authorities must record what they are doing.
The submission system and abuse clustering I have described will require the use of technology. We are moving to a stage at which hand-held devices can now be used. Our own inspectors who were involved with the unfinished estates were able to get the GPS locations of the sites and so on. Consequently, one can locate the site one is talking about precisely on the map and one can then enter information at the location at which one is conducting the inspection. All such new technology facilitates a better understanding of what someone does. Basically, when one considers what are the problems and how to manage them - this is a management issue for local authorities - it is clear that managers for building control should be defining what jobs they intend to inspect. They should be examining all jobs in some form and should then focus on some which may be problematic or the scale of which might be sufficiently large to warrant regular full inspections. Moreover, they must do this with the resources they have unless managers reassign resources. The question of what resources are available is a management decision on the part of city and county managers. A few pilots are being examined whereby a local authority could consider its resources in their entirety. It could identify the availability of taking in charge staff, as was mentioned earlier by Deputy Catherine Murphy. If one pools one's resources and one has a single major job that must be vetted thoroughly, one should be able to pull in resources from adjoining counties. One certainly will have protocols already set out as to what happens when something gets red-flagged. Such a red-flagging system is absolutely required.
The previous speaker mentioned the regime north of the Border, where it appears as though they are not as dependent on self-certification. That is not a criticism; it simply is a phrase that is used. What does Mr. O'Connor think of the system that obtains in the North? Is he familiar with it and does it operate along the lines of having a clerk of works? What does he think of such a system?
Mr. Aidan O'Connor:
They have a system in which one pays upfront. One gets one's building control but they make inspections because one pays and otherwise, one cannot move on-site. They effectively have a very simple look-down system which is well resourced and well staffed. While I have forgotten the numbers involved, as matters stand they far outweigh the numbers engaged in building control in the South.
I thank the witnesses for their attendance. In respect of the BRAB's role as an advisory body, I note there is a representative of HomeBond on the board. The joint committee had no success in getting representatives of HomeBond to appear before it. It refused to discuss the impact of its decisions on those affected by pyrite. I wonder at the wisdom of having people on the board who may be in a position to influence its decisions in respect of the advice it gives.
Would we not be better moving to an independent board which could have regulatory teeth?
With regard to the 1990 Act, the burden of responsibility for compliance rests with the developers, the designers and the owners but the building control officers in the local authorities are not compelled to check it out. Even if they were, would they have the competences to identify whether there is an actual problem with a building? Would Mr. O’Connor see that as the crux of the problem? In Edenderry there is a pyrite problem in an estate. If there had been a building control officer with the relevant competences checking at every stage, would it have prevented the problem?
Does Mr. O’Connor believe the level of the fines that can be imposed is sufficient? It seems to me that a fine of €5,000 to €50,000 is very small for a matter as serious as this. A home is the largest investment one will make in one’s life. To think some people are watching their homes collapsing around them due to deficient building materials is appalling. There is a consumer protection issue in this and I see the BRAB as fulfilling such a role. Does the board come up with changes to the building regulations? Which other bodies make suggestions in this regard?
Mr. Aidan O'Connor:
The BRAB invites organisations to put people forward for it. When they become members, the theory is they leave their hats behind them and advise on that basis. Of course, there will always be a certain amount of interest but we try and ensure they park them.
HomeBond has been an active participant on that board for many years. It brought in its own insurance scheme, information on sites and a manual for home builders. It did much good work in bringing forward the technical skills within the construction industry. It was the main dominant agent in the sector over the past 15 years. Another insurance company, Premier, came in but just acted as an insurance company.
HomeBond would have put forward a technical person, not a member of its board. The withdrawal of the HomeBond guarantee regarding pyrite-affected homes was decided by the HomeBond board because of its concern for the insurance on the ten-year guarantee that it had offered. One could ask why it was not resourced enough to carry the risk. It was not because it was a guarantee scheme, not an insurance scheme. It has since switched to being an insurance scheme which, I accept, is of little help to those people it has denied access to by standing back from declaring it does not take responsibility in pyrite cases. I am sure there are various opinions on that but I do not accept HomeBond should be allowed to stand back. I have said so directly.
Having technical people on the board, as we see it, is beneficial. Sometimes, they may speak on behalf of their own organisation but this makes it a lively and valuable board. We, as departmental officials, attend it as we offer the facility of administering it. It should be remembered the board is doing this work voluntarily and the only person who is paid is the chairperson, who gets a small allowance. HomeBond made the decision to exclude the pyrite cases but its representative was already on the BRAB for five years.
Does Mr. O’Connor believe it is suitable for HomeBond to have a person on the BRAB? It let down the people who thought it would support them. The fact it will not account for itself before an Oireachtas committee reflects poorly on it.
Mr. Aidan O'Connor:
Yes, I do believe there is as local authorities have their professional engineers, architects and surveyors. Are those skills applied to the building control section is another question. Fire officers who act as building control officers usually are engineers by background and have detailed further training in fire safety. We can make general statements, however. For example, Fingal County Council has an excellent building control officer who has taken a proactive role in all issues that she has faced.
I apologise for being late and welcome the delegation. As said earlier by the Chairman, we have asked HomeBond on numerous occasions to attend this committee but it has only shown contempt to us for the past 18 months.
I know of several instances in my constituency. Many Members have highlighted many issues here during the past 12 months. How can Mr. O'Connor say that there are some technical people on the board representing HomeBond when these people have no credibility left whatsoever in respect of this committee or among many of the public throughout the country who have had adverse experiences? I have had experiences and I represent the constituency of Sligo-North Leitrim. There is a scheme of houses in Strandhill and the people there have been affected. I imagine there are similar cases in every constituency and in many towns and villages throughout the country. These people are swanning about and are showing contempt not only to this Oireachtas committee but also to many other people in various parts of the country. They have not been prepared to engage with people and will not engage with the local authorities in respect of issues that have been highlighted in recent years. Will Mr. O'Connor comment in this regard? How can he claim that these people have a representative as a technical person? I believe these people have no credibility left to represent or to be involved in anything. As a result of this meeting we should demand that these people are asked to a meeting here as a matter of urgency.
Mr. Aidan O'Connor:
I thought I was quite clear on it. I said I did not accept what HomeBond did with the withdrawal of that insurance. I do not accept it. I am not endorsing it. The question originated with the existing occupant in that role. That board has now ceased. We should be clear on that. He does not occupy that board position anymore. I am suggesting that when he occupied it, he made a significant contribution, as did the person before him, to the workings of the board at a technical level. I am referring to two separate entities. There is no explanation or excuse for what the board did by withdrawing the guarantee. It was disgraceful. That does not mean that a person who worked for the board was behaving in that manner and he did not behave in that manner, but he was curtailed by its decision. That board has now ceased. He is not a member of it.
Given the board's behaviour, its point blank refusal to attend the committee and the fact that it withdrew the insurance, does Mr. O'Connor believe HomeBond should continue to have a representative on the new board?
Mr. Aidan O'Connor:
At a departmental level we are still engaging with HomeBond, if that is the question. We are trying to get traction with HomeBond, the Construction Industry Federation, the quarries, the insurance people and the banks. Many people have withdrawn from the fray, HomeBond being the most obvious and explicit party. Insurance companies have withdrawn insurance for people who ended up having pyrite. Where do they stand?
Obviously, it is not listening to the Department either. It has shown contempt to the Oireachtas committee and its members. We gave it an opportunity to come here on numerous occasions and it did not accept the invitation at any stage, nor did it come near the committee.
Mr. Aidan O'Connor:
We have a blank sheet at the moment. The committee terminated on 1 October. It was on an extension. It was a five year committee and it was extended until the beginning of October, at which point the ministerial decision was expected to be made. The decision to act on it will be made this month. It was extended because the people who had brought forward the initial work were part of that and they sought to remain there. They wrote to the Minister and the Minister granted them permission. He gave them an extension because of the work they contributed to evolving-----
I have two questions and both are fairly straightforward yes or no questions. Is an insurance scheme available for those who carry out inspections? Let us suppose an electrician signs off on his work and claims his work is to a certain standard. The same could apply to a carpenter or someone who installs windows. Is there insurance? Are these people indemnified? Is there any liability? Let us suppose one goes to a hospital for an operation. If there is a mistake then there is recourse legally on the practitioners.
Correct. There may be a situation where someone is told by his employer to sign off on something and that person might become the scapegoat.
Is there a register of inspections? Is it available from local authorities for public perusal? If a register of inspections is available, is it subject to freedom of information legislation? I will understand if that information is not to hand now.
While we are still in public session I move that we resolve that the new board will not have a representative from HomeBond and that, subject to the approval of the committee, we notify the Minister of that decision. Is that agreed? Agreed.
I suggest we proceed with this line of action first. We may revisit it depending on the outcome of our proposal. I thank Mr. O'Connor and Mr. Beausang for their appearance and for assisting us in our deliberations. If I were to say that you are now free to go it might sound as if I were a trial judge. Anyway, with respect, your attendance is no longer required and I thank you for joining us.
We should reflect on this afternoon's interaction in advance of next week's meeting because there were several notable points. We may deliberate on it in the coming days and return to the committee with recommendations. We could do it during private session next week. At least four or five points stand out in my mind from the contributions this afternoon. I propose that we allow people to think about it for the next while and we can come back and discuss it in private session next week. Is that agreed? Agreed.