Phil Hogan (Carlow-Kilkenny, Fine Gael)

I move amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:

"notes that:

— the Building Control Acts 1990 to 2007 provide a clear statutory framework for construction activity based on legal standards set out in the building regulations and associated detailed technical guidance documents which set out how to achieve the standards in practice;

— building regulations set out the legally enforceable minimum requirements that a building must achieve;

— the Acts place responsibility for compliance with the building regulations first and foremost on the builder-developer;

— professionals who are engaged by builders-developers have also a statutory responsibility to ensure that construction meets the standard;

— certificates of "substantial compliance" are not part of building regulations but were developed by the legal profession and the Royal Institute of Architects of Ireland to facilitate conveyancing;

— responsibility for enforcement rests with the 37 building control authorities which have extensive powers under the Building Control Acts 1990 to 2007 to enforce

compliance with the regulations, including the scrutiny of plans and to carry out inspections; serve enforcement notices for non-compliance; initiate enforcement proceedings for breaches of regulatory requirements; and seek High Court injunctions if non-compliance poses considerable and serious danger to the public;

— the Building Control Acts 1990 to 2007 provide for considerable penalties for failure to comply with the requirements of the building regulations;

— the agreed national inspection target is that each building control authority should inspect a minimum of 12% to 15% of buildings covered by a valid commencement notice submitted to the authority and that statistical returns for 2010 show that the average inspection rate across all building control authorities is 23%;

— responsibility for "making good" construction defects must rest with those responsible;

— the role of the Minister for the Environment, Community and Local Government is to ensure that appropriate statutory requirements, technical standards and administrative provisions are in place to give practical effect to the Act;

— in July 2011, the Minister for the Environment, Community and Local Government announced that he had instructed his Department to advance the following measures to strengthen the building control system:

— the commencement of section 6(2)(a)(i) of the Building Control Act 1990 requiring the submission to building control authorities of certificates of compliance with the building regulations in respect of particular buildings or works;

— the preparation of an amendment to the building control regulations that will:

— set out the form of the proposed certificates of compliance and the administrative procedures that will govern their use; and

— require the lodgement of drawings and documentation prior to the commencement of works and, again, on completion of works, demonstrating compliance with the requirements of the building regulations; and

— engagement with the City and County Managers Association to make arrangements for:

— the move to a regionalised-shared services model for the administration of building control functions;

— the agreement of standardised approaches and common protocols to ensure nationwide consistency in the administration of building control functions and the meaningful oversight of building activity; and

— agreement on common measures for the support and further development of the building control function nationwide; and

— proposed Building Control (Amendment) Regulations have recently been released for public consultation and will provide for mandatory certification and the lodgement of drawings.

I wish to share time with the Minister of State at the Department of Agriculture, Food and the Marine, Deputy shane McEntee, and Deputy Peter Mathews.

Recent high profile failures in the housing and construction sector have called into question the role of the State in this area, understandably so. Self-regulation introduced by my predecessors has failed and I intend to change the regulations. The proposed regulations are on public display. The trust we placed in the professions to do this job was badly misplaced.

My Department and I have a responsibility to guide and regulate development, but there is a point at which it is up to the professions and the industry to take over and ensure, as Deputy Mick Wallace said, that the planning, design and construction of the built environment is of the highest quality. There is a robust system of building control and local authorities are successfully using their powers against non-compliant operators. Of course, from a regulatory respective, there is much that can be done to improve the system and that is what we are doing.

In order to understand the arrangements in place for the control of building activity, it is first necessary to understand the provisions of the Building Control Act 1990 and how they may apply in practice. The Act provided for the establishment of building control authorities and the making of building regulations and building control regulations for the construction of buildings. The building regulations were introduced and came into operation in the years immediately following the Act and gradually enforcement arrangements were developed across the local government sector leading to the nationwide system of local building control authorities we have today. A clear statutory framework for construction activity, underpinned by the Building Control Act 1990, is, therefore, in place and based on the following: clear legal standards as set out in the building regulations; detailed technical guidance documents to outline how these standards can be achieved in practice; the burden and responsibility for compliance resting first and foremost with developers-builders, designers and building owners; a statutory responsibility for professionals to design in accordance with the building regulations; and the responsibility for enforcing compliance with the building regulations resting with the local building control authorities.

The Act sets out clear roles and responsibilities for a number of parties, namely, the Minister, the owner-developer, building professionals, including designers in particular, and local building control authorities. My role as Minister is to ensure appropriate statutory requirements, technical standards and administrative provisions are in place to give practical effect to the Act. In particular, this involves the making of building regulations and building control regulations. This aspect of the matter has generally worked well and is not in dispute.

The building regulations set out the legally enforceable minimum requirements that a building must achieve. The requirements are set out in 12 Parts, classified as Parts A to M, each of which addresses a key aspect of ensuring the safety and well-being of persons in and around the building. A technical guidance document, TGD, is published to accompany each part indicating how the requirements of that part can be achieved in practice. Adherence to the approach outlined in a TGD is regarded as evidence of compliance with the requirements of the relevant part of the building regulations.

The building control regulations deal with the administrative and procedural arrangements in place for the purpose of securing the implementation of, and compliance with, the requirements of the building regulations. Contrary to common perception, I have no role in regard to enforcement activity which the Act of 1990 delegates to local building control authorities which are independent in the exercise of their statutory powers.

In regard to the owner-developer, the Act of 1990 places responsibility for compliance with the requirements of the building regulations first and foremost on the owner and the builder-developer of a building. Where, for instance, an issue arises concerning non-compliance of a particular building with the building regulations, the Act enables the local building control authority to issue an enforcement notice on the owner and-or the builder. The onus is on the builder and the owner to demonstrate compliance with the building regulations when required to do so by the relevant local building control authority. Failure to do so is an offence under the Act which may, if successfully prosecuted in court, lead to a fine and-or a term of imprisonment.

Remediation of defects is a matter between the parties concerned, that is, the owner and the builder-developer and their insurers. This applies even where the owner is a local authority. If a satisfactory resolution cannot be achieved through dialogue and negotiation, the option of seeking a civil legal remedy may be considered. In such situations the statutory requirements provide a yardstick by which the owners or builders, their technical consultants and the courts can determine whether a building is fit for purpose. The requirements of the building regulations apply to the design as well as the construction of a building and there is a responsibility on designers to ensure their designs are in compliance with the minimum legal requirements.

More generally, construction professionals play a key role in the planning, design and construction of the built environment. Notwithstanding the responsibility of the Minister and the Department to guide and regulate development, the quality of the built environment depends to a large extent on the quality of the contribution of construction professionals.

Construction professionals play a key role in designing, developing, and certifying buildings. Where these buildings prove to be less than fit for purpose, construction professionals must be held to account for the consequences of their actions. Such individuals should not be immune from criticism and should be held accountable for the consequences of their actions by society and their profession. The lack of attention being paid to this objective reality by the professional bodies in their public statements, by media commentators and by members of both Houses in their contributions to proceedings is disappointing.

Under the Act of 1990, local authorities, as building control authorities, have strong powers to scrutinise proposals and inspect works in progress, serve enforcement notices for non-compliance, institute proceedings for breaches of regulatory requirements and seek High Court injunctions if non-compliance poses considerable and serious danger to the public.

Failure to comply with the requirements of the building regulations where a successful prosecution takes place may result, on summary prosecution, in a maximum fine of €5,000 or imprisonment for a period of up to six months, or both. A further fine of €500 in respect of each day on which the offence is committed after summary conviction can also be applied. A successful conviction on indictment may result in a maximum fine of €50,000 or imprisonment for a period of up to two years, or both. Similar powers are additionally vested in local authorities under the legislative codes governing fire safety and planning and development.

The Department has set a target inspection rate of 12% to 15% of all buildings covered by valid commencement notices. Statistical returns for 2010 show that all but five building control authorities met or exceeded this target, and a general average inspection rate of 24% of all buildings was recorded. However, I agree with Deputy Higgins that this is not acceptable. The new code of practice will indicate the level of inspection by the relevant authorities later this year. I assure the Deputy that staged inspections will be part of the new code.

Statutory processes such as those under the Building Control Acts 1990 to 2007 and the relevant building control regulations in regard to applications for fire safety certificates and disability access certificates also enable local authorities to influence positively the quality of a building.

Problems at a number of developments, referred to by the Deputies, are already well known, and the Department is aware that local authorities across the country are using the powers currently available to them to address issues of building standards compliance, including in regard to fire safety. While local authorities use the courts to effect compliance where it is reasonable and appropriate to do so, desired results can be, and often are, achieved through discussion and persuasion with the threat of legal action.

While the aforesaid sets out a brief overview of the existing arrangements in regard to building control, it is clear that, from a regulatory perspective, there is much that can be done to improve the system. Unfortunately, many homeowners and tenants today understand this to their detriment as they have been left, through no fault of their own, to struggle with the consequences of unfinished estates, pyrite problems and defective buildings and developments. The only appropriate response to such legacy issues in the longer term is to strengthen the system to ensure such problems do not visit us again. In the short term, we must do everything possible to help those affected.

I recently announced a number of measures that will improve compliance with the requirements of the building regulations and oversight of construction activity. Following extensive consideration of a number of reports and recommendations for change put forward by the Building Regulations Advisory Body and various industry stakeholders, which reports and recommendations were discussed in detail at various stakeholder consultation events, I announced in July 2011 my intention to proceed with the following measures: the commencement of section 6(2)(a)(i) of the Building Control Act 1990 requiring the submission to building control authorities of certificates of compliance with the building regulations in respect of particular buildings or works; the preparation of an amendment to the building control regulations that will set out the form of the proposed certificates of compliance and the administrative procedures that will govern their use, and require the lodgement of drawings and documentation prior to the commencement of works and again on completion of works, demonstrating compliance with the requirements of the building regulations; and engagement with the County and City Managers' Association with a view to making arrangements for the move to a regionalised or shared services model for the administration of building control functions, the agreement of standardised approaches and common protocols to ensure nationwide consistency in the administration of building control functions and the meaningful oversight of building activity, and agreement on common measures for the support and further development of the building control function nationwide.

The measures, when implemented, will represent a credible set of proposals that will lead to an enhanced system of building control that can be achieved in the short term and that will serve the interests of the consumer, the Government, industry and the built environment in a better manner.

The key step will be the early introduction of mandatory certificates of compliance confirming, with appropriate documentary evidence, that the statutory requirements of the building regulations have been met for the building in question.

Unlike the worth of the opinions of compliance currently provided for conveyance purposes, which are not of course a part of the statutory building control process but are often misrepresented as being such, the worth of the mandatory certificate will be more in keeping with the asset concerned than the paper it is written on. Mandatory certificates will mean what they say and will be signed by professionals who understand and accept their responsibilities and the liability that goes with the consequences of failing to meet those responsibilities.

Mandatory certification of itself depends on the integrity of those concerned and must therefore be coupled with more rigorous oversight of construction activity, as advocated by Deputy Wallace. I have, therefore, approved proposals devised by my Department and County and City Managers' Association representatives that will involve more efficient pooling of building control staff and resources across the local authority sector to ensure more effective and meaningful oversight of building activity, standardised approaches and common protocols to ensure nationwide consistency in the administration of building control functions and better support and further development of the building control function.

Proposed building control (amendment) regulations were released for public consultation earlier this year which make provision for mandatory certification and the lodgement of drawings, as outlined earlier. The closing date for submissions was 24 May 2012 and some 500 submissions have been received. They are currently being assessed by my Department with a view to having a final set of regulations providing for mandatory certification and lodgement of drawings ready to be signed into law as soon as possible. I am determined, after public consultation, to follow through with the planned reforms, which I believe will be capable of delivering the level of compliance with building regulations and the standard of quality buildings that members of the public so rightly expect and deserve. In keeping with the standard procedures in regard to these matters, I have instructed my officials to continue to engage closely with key stakeholders to ensure the new regulations, when finalised, will be clearly understood and will work well for all concerned, with appropriate enforcement.

I have outlined the statutory framework for building control which is in place and under which local authorities have strong powers to act against non-compliant operators. Problems can and do arise, and in such cases I urge local authorities to continue to use all of the powers currently available to them with a view to ensuring defective homes or buildings can be made fit for purpose and that the costs of so doing fall where they should.

There is an urgent need for the professions in the industry and for builders and contractors and their representative groups to step up to the plate in delivering on their aspirations and their obligation to provide a reliable standard of professionalism and quality for consumers.

I am taking the necessary steps to strengthen the system. The set of measures outlined, including, in particular, mandatory certification, lodgement of drawing and more meaningful oversight of construction activity by local authorities, will be capable of ensuring stronger compliance with the requirements of the building regulations and homes and buildings of better quality for all.

See this speech in context