Transcript DNIF Final PPT 17 01 2014 (draft of Thursday)

Building Control (Amendment) Regulations 2013
Legal issues – compliance and the consumer
perspective
Engineers Ireland
17 January 2014
Deirdre Ní Fhloinn
Reddy Charlton Solicitors
Compliance
- BCA role and approach to compliance
- Compliance by the Assigned Certifier, Designer and
Builder
- Enforcement and Civil Liability
Consumers
- How will the Regulations deliver benefits to consumers?
- Will it be any easier for consumers to seek redress for noncompliances?
Compliance – role of BCAs
• Processing and deciding on applications for Fire Safety
Certs and DACs
• Receiving and validating submissions, but without an
obligation to carry out a technical review
• Conducting inspection, enforcement and prosecution
under the 1990 Building Control Act
• Validation (and possible rejection) of Certificates of
Compliance on Completion
• Maintenance of Register of valid applications, certificates
on compliance, enforcement notices, etc.
Monitoring Compliance – draft CoP
• BCAs to undertake an ‘appropriate level’ of assessment
and inspection but responsibility remains with the AC,
Builder, designers and building owner
• BCA has power (but not duty) to check and assess
documents lodged with commencement notice
• BCAs should adopt a ‘formal policy’ for assessment and
inspection of work during construction stage based on
various criteria
• At completion stage, main role of BCA is to validate the
Cert of compliance on completion and place it on the
Register – no technical assessment
Building control authorities - liability
- Caselaw on local authority liability for non-compliance:
Dutton v. Bognor Regis, Anns v.Merton LBC , Ward v McMaster,
Murphy v Brentwood
- Statutory limit on BCA liability was introduced in Building
Contract Act 1990 in response to caselaw
- No shift in Regulations towards duties rather than powers of
inspection - s. 6 (4) of the 1990 Act makes clear that BCA has
no duty to ensure compliance or to verify that certificates are
accurate
Compliance and the Assigned Certifier
The assigned certifier must:
- Undertake to use reasonable skill, care and diligence to
inspect the works and to co-ordinate the work of others
- Undertake to certify compliance with the Second
Schedule requirements following implementation of the
Inspection Plan
- Sign Part B of the Certificate of Compliance on
Completion, confirming that the building/works is in
compliance with the Second Schedule requirements
Compliance and the Designer
The Designer must:
- Confirm that the plans, ancillary certificates etc. have
been prepared to demonstrate compliance with the
Second Schedule requirements
- Certify that the proposed design is in compliance with the
Second Schedule requirements
Compliance and the Builder
The Builder must:
- Undertake to construct the works in accordance with the
plans, calculations, specs, ancillary certs etc. listed in the
Commencement Notice
- Co-operate with implementation of the I. Plan
- ‘take all reasonable steps to ensure that I shall’ certify
compliance with the Second Schedule requirements
following implementation of the Inspection Plan
The Ancillary Certifiers
- Assigned Certifier, Designer and Builder will need to rely on
ancillary certifiers – does reliance qualify liability? Legal
consequences of reliance not clear from the Regs.
- if the ancillary certifiers do not provide certificates, can the
Assigned Certifier refuse to sign the Completion Certificate, in
breach of their undertaking (furnished with Commencement
Notice application) to certify compliance?
- No form of Ancillary Certificates is included in the
Regulations
Compliance – Enforcement and Civil liability
BCA may issue enforcement notices under the BCA 1990 and
may apply to Court if necessary to enforce
Failure to comply with the Regulations is an offence under s.17 of
the BCA 1990 – potential for fines, imprisonment, and
disqualification from signing certificates
s. 21 BCA 1990: A person shall not be entitled to bring any civil
proceedings pursuant to this Act by reason only of the contravention of
any provision of this Act, or of any order or regulation made thereunder.
:does not exclude liability in tort of negligence.
Consumer perspective
Do the Regulations create any new rights for consumers?
Do the Regulations impose any greater duties than those
that apply at law?
Minister Hogan: Dec 2013: ‘These new Regulations do not actually
change the existing legal responsibility of architects, designers and
builders…rather than provide for greater clarity…’
However, change from opinions on substantial compliance to certificates of
compliance arguably increases the risk for professionals
Consumer remedies – current legal environment
• No ‘discoverability’ test in Irish law – claim may be statute
barred before defect is found
By contrast, UK Latent Damage Act 1986 allows latent
defects claims to be brought within 3 years of discovery,
with extension of period for subsequent purchasers
• Only the original purchaser can normally sue under the
standard Law Society building contract, which prohibits
assignment without the builder’s consent and is signed
under hand (6 year limitation)
Consumer remedies – who pays for non-compliance?
• BCAs will not be liable for cost of non-compliance
• Professional involved in giving certificates may have an
exposure in tort for professional neglience
• Recovery in tort for building defects is complex and
unpredictable
• The common law steers owners towards building
contractors, under their contracts, as primary avenue of
redress
Consumers – redress against building contractors
Building contractor – homeowner remains the primary
relationship for redress
Remedy should be in contract but may be difficult to obtain:
- claim may be statute barred,
- plaintiff must prove breach of contract and damages
attributable to breach
- the builder may be insolvent
- Plaintiff may not be party to the original building contract
Consumers – redress against designers and
certifiers
Consumers will have no direct contracts with
designers/certifiers
Tort law may provide a remedy for professional negligence,
if there is reliance and an assumption of responsibility
Designers and certifiers must complete the prescribed form
and cannot amend it to limit their liability (as with the
existing opinions on compliance)
Consumers: benefits of the Regulations
• Development of culture of compliance should result in
substantial improvements in building quality
• Register of competent builders, and restrictions on who
may act as Assigned Certifier should provide assurance
• Access to information on contractors, subcontractors and
design teams responsible for non-compliances via the
details on Register and requests under the Freedom of
Information Act
Consumers: limitations of the Regulations
• Consumers will still need to go through the Courts for
compensation in the event of defects, and may have no
contract with the original contractor/team
• Arguable that consumers will find it easier to pursue the
design team and thus the design team’s PI cover, but
remedy is very complex and unpredictable
• No provision for mandatory defects insurance
What can be done to provide remedies for
consumers?
The primary remedy for consumers should be via the
contract by which they acquired the property
Remedies in tort are complex and unpredictable
In light of the current legal environment and difficulties for
plaintiffs in enforcing their legal rights, defects insurance
may be the only practical, accessible means of redress for
consumers.
Summary
Compliance
Substantial additional compliance requirements on designers, assigned
certifiers, and builders
BCAs will not accept liability for failures to comply
Consumers
-
Improved buildings
access to information, particularly (i) identity and details of design
team, builder, subcontractors and (ii) copies of drawings, etc.
No new avenue of redress for defects- consumers must avail of
existing, complex legal remedies
Disclaimer
This information is for guidance purposes only. It does not constitute legal or
professional advice. Professional or legal advice should be obtained before
taking or refraining from any action as a result of the contents of this
publication. No liability is accepted by Reddy Charlton for any action taken in
reliance on the information contained herein. Any and all information is subject
to change.