Darragh O'Brien (Dublin Fingal, Fianna Fail)
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The Construction Products Regulation (EU) No 305/2011 (CPR) sets out rules for the marketing of construction products in the EU. Where a construction product covered by a harmonised standard (includes concrete blocks, aggregates for concrete, hardcore etc.), is being placed on the EU market, the CPR requires the manufacturer to draw up a ‘declaration of performance’ and affix a ‘CE’ marking to the product. In order to do so, manufacturers must test and declare the performance of their construction products using a common technical language prescribed in the harmonised standard.

The National Standards Authority of Ireland (NSAI), has produced additional guidance to some harmonised standards, under the CPR, in the form of Standard Recommendations (SRs) which set out appropriate minimum performance levels for specific intended uses of certain construction products in Ireland.

SRs outline the precautions to be taken in the quarry to reduce the risk of harmful impurities in aggregate production, manufacture of concrete blocks and require third party oversight of the manufacturing process by a Notified Body (a designated body that carries out third-party tasks). A full list of designated Notified Bodies for construction products may be found on the New Approach Notified and Designated Organisations (NANDO) Information System hosted by the European Commission.

Following the Government decision on the enhanced defective concrete blocks grant scheme on 30 November 2011, NSAI was tasked with delivering the programme of work which includes a technical review by NSAI Masonry Committee of the Irish Standard for Concrete Blocks (including aggregates). This review by NSAI will adopt an evidence-based approach to enable technical advancement of the SRs. To this end, since 2021, I have commissioned further research to support NSAI in their task and gain a greater understanding of the effects of deleterious materials in aggregates and concrete blocks in order to avoid future adverse effects in buildings.

NSAI does not operate under the auspices of my Department, it is an autonomous body under the aegis of the Minister for Enterprise Trade and Employment, and as such detail issues in relation to committees, expertise, timelines etc., are matters for the NSAI.

Ultimately, the manufacturer is responsible for compliance with the CPR and in particular for the Declaration of Performance/CE marking of the construction product he or she is placing on the market, having full knowledge of the raw material (as is legally required by the CPR via the relevant harmonised European Standards) and having regard to the end product’s suitability for use in construction works in accordance with the relevant SRs published by NSAI.

My Department recently published ‘A Guide to the marketing and use of Aggregate Concrete Blocks to EN 771-3 in Ireland’ on its website. This Guide provides guidance to economic operators (manufacturers, importers and distributors) on the marketing of aggregate concrete blocks to EN 771-3 standard, the harmonised European standard under the Construction Products Regulation. It also outlines the responsibilities of specifiers, designers, builders, certifiers and end users for compliance with the Building Regulations 1997 to 2021. This Guide was disseminated to all building control authorities, NBCMSO and industry stakeholders and interested parties.

While the CPR came into force and has direct legal application across the entire European Union since 1 July 2013, each Member State is responsible for regulating for its own market surveillance activities in accordance with the specific requirements of the CPR and the broader overarching requirements of Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011. Regulation (EU) 2019/1020 establishes an EU wide framework for market surveillance, and came into full effect in July 2021. This strengthens the existing provisions in the CPR (and other Union harmonisation legislation), relating to the compliance of products, the framework for cooperation with organisations representing economic operators or end users, the market surveillance of products and controls on products entering the EU market.

Under the European Union (Construction Products) Regulations 2013 (S.I. No. 225 of 2013), each of the building control authorities (local authorities) have been designated as the principal market surveillance authorities for construction products that fall within the scope of the CPR, within their administrative areas.

In 2019, my Department issued ‘Guidelines for local authorities in the preparation of their Corporate Plans 2019-2024’.The corporate plan serves as the local authority’s strategic framework for action over the duration of the plan. These guidelines emphasise the importance of the Building Control function to ensure safe and sustainable buildings in urban and rural areas and highlights the key responsibilities for Building Control, including monitoring compliance with Building Regulations, Building Control Regulations, Construction Products Regulation and Energy Performance of Buildings Directive.

The National Building Control Management Project (NBCMP) is managed by the National Building Control Office & Market Surveillance Office (NBCMSO) within Dublin City Council to provide oversight, support and direction for the development, standardisation and implementation of Building Control as an effective shared service in the 31 Building Control Authorities, through the five pillars of Training, Inspections, Compliance Support, Information System - BCMS and Market Surveillance.

The National Building Control Management Project (NBCMP) is delivered through a three-tier management structure which includes:

- The National Building Control Advisory Board, which advises on the strategic direction and guidance of the NBCMP.

- The NBCMSO, which implements the NBCMP and manages the working groups under each of the five pillars.

- Three Regional Building Control Committees (Eastern & Midlands, Northern & Western, and Southern), which provide a network for building control officers to exchange views and share good practice, leading to a uniform high level of enforcement in the discharge of the building control function. The Committees also contribute to and participate in the working groups established under each of the five pillars.

Officials from my Department participate throughout this structure at Board level, working group level and committee level.

In 2020, in order to strengthen the market surveillance function, I appointed Dublin City Council as a competent authority, under the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 (Construction Products – Market Surveillance) Regulations 2020, for the carrying out of market surveillance functions under the European Union (Construction Products) Regulations 2013 for all related construction products on a nationwide basis.

NBCMSO has been established for this purpose and may be contacted at: support@nbco.gov.ie. Building control authorities liaise with NBCMSO to support compliance with the CPR and to determine appropriate action on enforcement matters, as they arise.

In 2020, my Department provided a budget allocation of €500,000 to support the development of the Market Surveillance Office. €147,000 of the budget was expended as the project was at the early development set up phase. In 2021, my Department provided €564,000 to continue to support the development, and resourcing of the Market Surveillance Office which included a budget allocation of €100,000 to Geological Survey Ireland to support NBCMSO with specific geotechnical expertise in the extractive and manufacturing sectors to further support more effective enforcement nationwide of construction products legislation. Funding of €564,000 is being provided by local authorities to the NBCMSO in 2022. In addition, my Department is providing €100,000 to Geological Survey Ireland to continue the work funded in 2021.

Market surveillance activity should enable non-compliant products to be identified and kept or taken off the market with unscrupulous and/or criminal economic operators prosecuted and penalised for their actions. In this context, it is important to note that the overarching objective of a market surveillance authority is to ensure that compliant products are placed on the market. Where non-compliance is identified, market surveillance activities should be designed to encourage economic operators to take appropriate corrective actions to redress the position within a reasonable period of time.

Market surveillance authorities have significant powers including to obtain access to the place of manufacture or storage, request technical information, select samples of the construction product and carry out evaluations, examination or tests on such samples. Where construction products are placed on the market which do not comply with the requirements set out in the CPR, market surveillance authorities have powers to direct the relevant economic operator to take the necessary corrective actions to bring the product into compliance. Where this does not work, there are further procedures that may result in the product being withdrawn or recalled from the market, its use subject to special conditions, or the products availability on the market being prohibited or restricted.

Ireland’s National market surveillance programme 2021is published on the website of the European Commission. Section 2.5 provides specific details with the market surveillance of construction products and outlines a market surveillance campaign led by NBCMSO, to perform risk assessments of selected quarrying and pit operations, follow-up inspections, sampling and testing as appropriate to ensure compliance with the CPR. The 2022 programme is currently being finalised and is expected to continue to focus on the extractive industries sector and expand upon the programme commenced in 2021.

In October of last year I requested a Market Surveillance Audit of all quarries in Donegal which was carried out by the National Building Control and Market Surveillance Office in partnership with Donegal County Council and Geological Survey Ireland. I received a report of this audit at the end of June 2022 and I am currently examining its contents.

Finally, building control authorities and NBCMSO are independent in the exercise of their statutory powers. Under section 159 of the Local Government Act 2001, each Chief Executive is responsible for the organisational arrangements necessary for carrying out the functions of the local authority for which he or she is responsible.