From Opinions of Substantial Compliance to Certificates of Compliance and from there - to Jail?
25 September 2012
Category: Legal Articles
The Building Control (Amendment Regulations) 2012
Question: Would any rational architect sign up to the following on completion of a construction project?
“I certify that I have inspected the works… and the building or works as completed is neither defective nor contravenes any requirement of … the Building Regulations…
having already provided an undertaking at commencement that
“Notwithstanding the responsibilities of other person/s or firms in relation to the works, I accept responsibility and legal liability for the inspection of all works as necessary to ensure that they are neither defective nor contravene any requirements of …the Building Regulations.”
Answer: No. Certainly no architect hoping to rely on professional indemnity cover.
Yet this is what architects will be asked to sign up to if the draft Building Control (Amendment) Regulations 2012 (the Amendment Regulations) are signed in to law. And worse, if an architect says this and gets it wrong criminal sanctions, including a custodial sentence, will apply.
The Amendment Regulations were introduced to tackle the issues surrounding the admittedly unsatisfactory practice which has developed in Ireland where professionals issue highly qualified opinions on compliance and those opinions are the only evidence of compliance of works with building legislation. However, what is proposed is to replace those opinions with certificates which, as drafted, no architect could possibly provide and no insurance company would back. The following is what is currently proposed:
Certificates will be required from architects at three stages (1) Commencement (2) 7 day Notice and (3) Completion, as follows:
“I confirm that the plans, specifications, calculations and particulars included in the… Commencement Notice … have been prepared to demonstrate compliance with …. the Building Regulations”
(2) 7 day notice
“I certify … that the proposed design for the works or building is neither defective nor contravenes any requirements of … the Building Regulations”
“I confirm that I am the person assigned by the owner of the relevant building works to inspect and certify the works and I now certify that I have inspected the works … and that the building or works as completed is neither defective nor contravenes any … of the Building Regulations.“
The above certificates will be provided in circumstances where the architect has given an undertaking at commencement of the project as follows:
“Notwithstanding the responsibilities of other person/s or firm/s in relation to the works, I accept responsibility and legal liability for the inspection of all works as necessary to ensure that they are neither defective nor contravene any …of the Building Regulations”
In the event that works are certified and found not to be in compliance with building legislation the following criminal penalties will apply:
On summary conviction – a fine of up to €5,000 and/ or six months imprisonment
On indictment (more serious offences) – a fine of up to €50,000 and/or two years imprisonmen
And in case a firm of architects would seek to take comfort in the fact that it is an incorporated entity, the legislation goes on to provide that a director, manager or secretary of a body corporate found to have committed the offence may also be found guilty of the offence.
In addition, the court may disqualify any person convicted of an offence from providing any further certificates for a period of two years (if a summary conviction) or ten years (if convicted on indictment).
As the late and highly respected David Keane explained, the reason for replacing certificates with opinions in Ireland in the 1990’s was that “since the issue of a certificate by anyone is a statement that they are certain of the facts stated and as a large measure of personal judgment could be involved it was considered appropriate to alter the title of the document to an Opinion on Compliance. The opinions were generally quantified by use of the phrase “substantial compliance” to indicate that exact compliance was a rare event…” Whilst things have moved on in the construction industry since Mr Keane wrote these words, one would think “exact compliance” is as rare as it ever was yet this proposed legislation expects architects to certify “exact compliance” and risk going to jail if they are wrong.
To finish on a more positive note, the consultation period for the Amendment Regulations ended on 24 May and by all accounts a huge number of submissions were received from the industry and are being considered. The Amendment Regulations are expected to be signed into law shortly and one hopes that the submissions of the industry have been taken on board.
The content of this article is provided for information purposes only and does not constitute legal or other advice. Mason Hayes & Curran (www.mhc.ie) is a leading business law firm with offices in Dublin, London and New York. © Copyright Mason Hayes & Curran 2012. All rights reserved.