On this section there is an amendment in the names of Deputies Keating and Quinn and, as amendment No. 2 in the name of the Minister is related, I suggest that we discuss the two amendments together, by agreement.
Building Control Bill, 1984: Committee Stage.
I move amendment No. 1:
In page 3, subsection (1), line 26, to delete "design and".
I do not think that I need to say a lot about amendment No. 1 and, perhaps, the Minister would like to elaborate on his thinking behind his amendment.
I second amendment No. 1. The Minister's amendment is similar to ours and, perhaps, he would like to elaborate.
Might I comment that I find it odd that there is an amendment in the names of Deputies Keating and Quinn and that both of them seem reluctant to explain why they are seeking to delete the words "design and" from the Bill.
This is the first time I was accused in this chamber of reluctance of any kind. The combination of the words "design and construction" gives the impression that those activities are identical and that might lead to confusion over responsibilities between a designer and a builder. Two separate functions are involved. They have implications in planning laws which are about the design of a building rather than the execution of design, the specific construction which is covered by by-laws and building control regulations. It seems to me that in principle the two, because of their fundamentally different definitions, should not be incorporated as if they mean the same thing.
The Deputies will realise that these matters were discussed on another occasion when we were on different sides of the House. They were dealt with by a special committee of the House and I thought that they had been disposed of to everybody's satisfaction by that special committee. I should like to say that the words "design and construction" are interlinked in the science and art of building and it would be wrong to divide them. The words "design and construction" are included in the definition section mainly for the purposes of section 3 (1) (a). Section 3 is the enabling section for the making of building regulations. Building regulations will of necessity influence the design of a building and it could be argued that if the word "design" is not included then the regulations which influence the design of a building areultra vires. Also, if the word “design” is excluded there could be doubts about a designer's responsibility for faulty construction work if an enforcement notice under section 7 is issued or there could be doubts about the powers of the authorised inspector under section 10 to require information from a designer. There could be doubts about proceedings taken by a building control authority against a designer pursuant to section 15. For those reasons I am strongly opposed to omitting the words “design and”, as proposed by the Deputies.
We should realise that a lot of time has elapsed since the Second Stage of the Bill was debated. There is striking evidence of that time lapse in the number of amendments tabled by the Minister. We should not fool ourselves into thinking that we have moved speedily from a consensus on Second Stage to the detailed debate on Committee Stage. The thinking behind the amendment, which runs into section 6 which deals with the certification of buildings, is in regard to the liability and responsibility that would fall upon either the designer of a building or the contractor. The Minister should delete the words "design and", and perhaps, insert a new definition of design.
It is important that we should be discussing this. There are two distinct activites relating to building regulations and the Bill proposes to give a legal effect to them. The first is the design of a building in formal and strict concurrence with the standard of performance specification set out in the building regulations. That is the responsibility of the design team. In many cases that responsibility and the team's involvement in the project may end at the point where a set of contract documents are handed over to a building contractor. A different person may be brought in by the contractor, for whatever reason. With the agreement of the client a contractor may decide to proceed without any further professional involvement by the design team. The construction of the building is the responsibility of the contractor. If the designer is not the original designer or the original design team and does not continue to be involved in the project they cannot be held liable or responsible for the way in which the building was done if the contractor on his own behalf, or on the instructions of a client, decides to omit certain types of building activity which would be required by the building regulations.
That, in essence, is the thinking behind the desire to separate the definition of "construction" and the definition of "design". I admit that the amendment, which is in my name and also in the name of Deputy Keating, simply addresses one half of the problem by allowing design as we are proposing in this amendment. We end up with a fairly precise definition of what construction entails but we have no definition of what design entails. I would ask the Minister to come up with a new definition of "design" on Report Stage. I do not think there should be any conflict on this matter. The logic of what I am saying will become far more apparent when we get down to the meat of this Bill; in fact, the meat is not in this Bill but rather in the regulations. It is rather like Hamlet without the prince. After two years I would have thought the Minister would have been able to find the prince. Clearly he has not. This Committee Stage debate will be haunted by that absence because we do not really know what we are giving effect to. Unless the Minister will be in a position later to elaborate upon this we will have difficulties.
The difficulties will be compounded in the absence of seeing the form of the certificate if design is inextricably linked up with construction. As stated in the Bill "design and construction" includes the execution of works in connection with building and any act or operation necessary for or related to the construction, extension, alteration, repair or renewal of a building. At the core of my objection is the outrageous price that will be charged for professional liability by any insurance company to underwrite the degree of exposure that a designer of a building would have if that clause would be the clause of definition to be read out by the plaintiff's counsel in a court of law following any kind of defect in the building. He simply would not be able to practise in the design profession in this country with an insurance certificate if that is the degree of exposure that a designer would be open to because of the reasons I have stated.
I would also like to express reservations on this proposal but I would not like to see the proposal deleted. Recently plans were drawn up for a substantial factory in my own constituency. Planning permission was granted and the person who designed it is no longer involved in the development of the construction. Somebody else is now involved. Can the Minister say if the original designer is the person who should carry the can? I would ask the Minister to consider what is being asked of him here and to take into consideration that if this proposal becomes law there will be serious problems for people in obtaining insurance, and we all know what that costs at present.
Although we have not got to the sections which are specifically related to the heart of the Bill, nevertheless we have come to the heart of the issue that is the whole background to this Bill. This Bill is attempting to privatise building controls and to hand over to designers and architects etc. the right to certify whether a particular building has been properly built or designed. The reality is that, while the designers and the architects are anxious to get their hands on the business of certifying, they are not anxious to take on board the liability which that will carry. The proposal to delete "design" is specifically related to that issue. That is why I said earlier I was surprised that the proposers of the amendment were not prepared initially to indicate why they were proposing it. For that very reason I oppose the deletion of "design" from this definition.
If you read the definition the amendment makes no sense at all. The definition states that:
"design and construction" includes the execution of works in connection with buildings and any act or operation necessary for or related to the construction, extension, alteration, repair or renewal of a building;
If you delete the word "design" and read the section it makes sense; if you delete the word "construction" the definition equally makes sense; the two together make sense. If the Deputies who are seeking an amendment had put alongside it another amendment which defined "design" then I would have some respect for what they are proposing to do. It seems to me that they are attempting to delete the responsibility of designers and architects from the definition of who is responsible for the construction of buildings.
I have to say Deputy Quinn is right when he says that the regulations are the important thing. What we are principally concerned with here is the health and safety of people in and about buildings. I hope there will not be that much conflict because it should be noncontroversial. We are just trying to do the right thing in so far as those two items are concerned. The regulations will be important and will be open to be considered or annulled here. That is the normal practice with regulations.
We are not setting out to give a definition of "design" or "construction". That is not what is intended in that opening interpretation. Design is an important and fundamental aspect of the Bill. If design were removed from the Bill it could in certain circumstances cast doubt on the ability to introduce, say, a fire safety certificate which would be provided for by the building control authority in relation to part of the building regulations. It would be based on the submission of the plans by the designer. It would be wrong to provide a situation whereby a building control authority in some way could not in circumstances issue a fire safety certificate. It would leave a gap in it that would make a nonsense of the Bill.
The concern expressed in relation to the separate functions of a designer on the one hand and those involved in construction on the other can best be dealt with in the context of the control system which will operate under section 6 of the legislation. I would envisage that provisions will be made for the furnishing of different types of certificates of compliance in the building control regulations. One type of certificate would be lodged by the designer and another relevant certificate, in relation to a completed building, by either the builder or some other person who may be an approved certifier. I do not see where the difficulty arises in having this agreed as suggested by me. I could not contemplate accepting the amendment as suggested by some of the Deputies because it would make nonsense of the whole thing and it would deprive us of getting information from a designer subsequent to cases being taken and that would weaken the whole question of control. I do not think that is what the Deputies want.
I accept some of what the Minister says but, nevertheless, there is a difficulty. I want to put Deputy De Rossa at ease lest he might interpret or impute, at this early hour of the morning on a fairly technical Bill, the whiff of ideology into what is being proposed here, which does not arise. The facts are that the term "design" and "construction" are two different things. It is no more complex than that. To globalise them and to pretend that they are synonymous with each other is not in accordance with the facts. There are cases where designs have been drawn up for a building and never executed but which subsequently became part of, for example, the corporate assets of a company to be executed perhaps one year or ten years later by a building firm or a contractor who may have no connection whatsoever with the designer. Because of the way this Bill is being put forward they find themselves lumped together for the purposes of controls and responsibility. I would be quite happy if the two words were defined separately in the Bill. I am not looking for any diminution of the Minister's control but it will lead to unnecessary confusion to have both words construed as if they are similar in meaning.
I understand that what is being proposed here, the vesting of certain forms of certification in what Deputy De Rossa would call private hands, is unique in Europe. In the normal course of events in other countries the state retains this control. I do not see any problem with this provided the overall control remains with the State. That is what this Bill is all about. There is nothing wrong with our utilising the expertise available to us in the community to do the work that is necessary for the common good provided the Government do not hand over lock, stock and barrel that responsibility. As I understand it that is not what is being proposed here but it is unique in the European context.
I am not going to delay the House unduly as I have made my point. I would be grateful if the Minister would consider before Report Stage including a separate definition for the word "design". I will be satisfied if he does so.
In relation to what the Deputy said, and I will also make reference to what Deputy De Rossa has said, while I am not interested in getting into any ideological arguments, I take the point. No group should be in a position where they could opt out of their responsibilities. I am not prepared to concede that. Everyone, be they designers, builders or contractors, must accept their responsibilities and to remove any one group would be irresponsible. I take Deputy De Rossa's point on that.
In connection with the certificates referred to by the Minister which would be required by designers and builders who will have to satisfy themselves that the certificate indicating that the designs outlined in the original plan are O.K., who will carry out the checks along the line?
That matter is dealt with under a different section.
May I ask how the amendment in the names of Deputies Keating and Quinn now stands?
I would like to make a proposal on my own behalf and I suspect that Deputy Keating may be in agreement with it. I give notice that on Report Stage we will submit an amendment which would propose in essence to insert separate definitions for the words "design" and "construction" which I think would be a better way of dealing with this problem from a procedural point of view. The arguments which have been made have not been refuted. There is a need for clear and distinct definitions of both the activities of construction and design. I am not going to press the amendment but I hope to reintroduce this amendment with an addendum on Report Stage.
I will consider that so long as we understand the general principle that everyone must accept their responsibilities.
We all agree on that.
That is important. If I were to accept the Deputy's amendment, a particular group of people would be relieved of their responsibilities and that would not be satisfactory.
I move amendment No. 2:
In page 3, subsection (1), line 29, after "building" to insert "and ‘designed and constructed' shall be construed accordingly".
Traditionally the building control authorities in this country have been the local authorities. The only building controls in place are what are known as by-laws. I am subject to correction but I think that only about five or six local authorities throughout the country have a statutory responsibility. There is no requirement in a vast geographical area to submit legal documentation on the standard of construction. Not wishing to be argumentative, I must say however that the reason this very controversial legislation has been stalled for such a long time is because we have not been able to agree on a system of administration. I do not think anyone in this House would disagree with the proposition that the ideal form of administration is the one administered by a local authority such as Dublin Corporation or Dublin County Council. We should recognise in the debate we will have on this legislation that that is the ideal but that we are derogating from that for a variety of reasons. The most obvious reason for this is cost and this is being compounded by the severe cutbacks in staff and shortages in local authorities. I am not going to get into the politics of that debate, but whatever the strength of argument back in 1981 or 1982 it has been substantially compounded by the reductions in staffing levels in local authorities.
In his comprehensive review of this Bill, and particularly this section, has the Minister considered allowing local authorities to retain the option of building control administration? In other words, instead of a developer or an architect going down the self certification route they would have the alternative option of going to a local authority or a combination of local authorities as provided for in subsection (5) of this section to get a certificate to the effect that the design complies with the building regulations. Let me elaborate on that point. In the administration of other local government functions we have a combination of local authorities for the purposes of efficiency and administration. In some cases we have joint county managers and the provision of joint services. In the smaller local authorities the cost would not be justified by the level of demand, even allowing for the fact that fees have to be paid for by-law approval. Has the Minister given any thought to the idea that a group of local authorities, perhaps those in the seven regions which have been formed so as to avail of EC Structural Funds, could join together to provide a building inspection unit using their own staff resources so as to offer an alternative to self-certification for someone who cannot get professional indemnity insurance and that that group of local authorities would be able to perform the functions, for example, currently performed by those authorities who administer by-laws at present?
As the Deputy will understand, the certificates are dealt with under section 6 and the point he has made is dealt with in section 5, which provides for co-operation between local authorities, adjacent or otherwise. That is provided for, but implementing this is another matter. It is important that legislation would include that option which could be taken now or later if the need arose. That matter is dealt with in section 5 and I presume it will be raised by the Deputy again when we come to deal with that section.
This section provides for the establishment of building control authorities and indicates that the following would be building control authorities: the council of a county, the corporation of a county borough, the corporation of Dún Laoghaire, the corporation of any other borough and the council of any urban district which at the commencement of the Act is a fire authority within the meaning of the Fire Services Act. These same local authorities are designed as fire authorities under the Fire Services Act, 1981. There are 27 county councils, five county boroughs, along with Dún Laoghaire Corporation, Drogheda Corporation, Dundalk UDC, Athlone UDC, and so on, 35 in all. It is important that I put this on the record so that those reading the transcript will understand precisely what is intended.
As a number of the parts of the building regulations deal with fire safety it is considered desirable that the local authorities who are fire authorities should also be building control authorities. I think that is right. This arrangement recognises the importance of the regulations in relation to fire safety and should ensure close co-operation in the administration of building control and fire safety measures. The relationship between the control authorities and the fire safety element attached to buildings is fundamental to the thinking behind this section. When the current local government reorganisation is completed, as we all know Dún Laoghaire Corporation will of course cease to exist and their function as a building control authority will be exercised by the new county council of Dún Laoghaire-Rathdown, which will be a building control authority by virtue of what I have said above.
Building control is concerned,inter alia, with fire safety in new and reconstructed buildings from a construction viewpoint, while fire safety administration is concerned both with new and existing buildings from a management and use of building viewpoint. Subsection (2) (a) provides that where the Minister makes an order under section 9 (2) of the Fire Services Act, 1981, that a local authority which is designated as a fire authority under that Act shall cease to be a fire authority from a particular date then that local authority shall also cease to be a building control authority from the same date. The purpose of this is to ensure that the same authorities will continue to be both building control and fire authorities. Subsection (2) (b) is the natural follow up from subsection (2) (a) in that it provides for the transfer of staff and property from an authority which ceases to be a building control authority to the building control authority which takes over their functions.
I will refer later to section 17 of the Fire Services Act, 1981, which is mentioned in this subsection. It provides for the transfer of staff and property from a local authority which ceases to be a fire authority to the fire authority taking over their functions. There are other minor matters related to this section but generally that is the thinking behind the section. I think we would all agree that the important overview is the relationship which exists between the building control authority and the fire control arrangements.
I should like on the section to make two points of a slightly general nature, one of which I will deal with in greater detail later on. In so far as we are providing in this section that local authorities will be building control authorities, I think it is incumbent on us to concern ourselves slightly with the degree to which they can carry out those functions and satisfy ourselves that they can actually do the job. The comprehensive complexity of what we are asking them to do in this Bill is a serious responsibility and at present I am somewhat reluctant to accept that some local authorities would be able to do what is being asked of them. For example, I know that at present in the Dublin city area parts of the city do not have planning inspectors — in other words, the basic broad parameters of planning are not being observed for one reason or another due to the kind of factors Deputy Quinn mentioned a moment ago. If we are going to go down the road of asking local authorities to become involved in very detailed building control regulatory mechanisms it is not good enough for us to simply say to local authorities "It is your function from now on" and assume that it is being done. I have some concerns that it will not be done because it may not be able to be done or there may be very great unevenness around the country, which I know exists even at the present time, in relation to the existing planning legislation. I am worried about this aspect of the Bill and it should be addressed by the Minister. There is no point in us dreaming up a massive scheme of things here if it will not be overseen, as I do not believe it will be.
Second, in so far as there is obviously — and the Minister wishes it to be — a correlation between the local authorities in terms of overseeing the building control regulations and, say, areas of fire safety, I was surprised to learn recently, although I have been a member of a local authority for many years, that there is a difficulty sometimes which arises because of the kind of conditions which some local authorities give planning permission. For example, in some areas local authorities give a planning permission which says "You have your permission subject to the fire officer's report". The problem is that apparently the fire officer's report is not a written statement. The insertion of the fire officer's conditioning of the planning application is apparently no more than a verbal assertion by the fire officer of a local authority that certain things should be done, but because it is not stated or explicit it has two very important consequences which are germane to this section.
First, the exact conditions which are appropriate to the construction and development of the particular proposal for which planning permission is obtained cannot be checked. There is no way of finding out whether a person is observing in detail the requests of the fire chief. This is extraordinary. Secondly, the public interest is being very badly served because a third party has no way of checking whether what is sought by the local authority is being done. I will give a concrete example of what I am talking about. What happens typically is that a person gets permission for a building, subject to the fire chief's agreement, but the fire chief can say "Sorry, I want you to move the building 20 feet down the road because I want to be able to drive fire tenders in at the side of it". That huge change in the planning permission — moving a building 20 feet down the road — does not have to be written down anywhere, as I understand it, and it is not written down anywhere that the fire chief will respond to the minutiae of stating what his role is in terms of the planning application. The conditions relating to the removal of a building 20 feet down the road are not available to the public. I cannot go into a local authority and say "My neighbour wants a building to be built. I gather he has got the permission so what are the conditions he has to meet?" The fire chief's conditions are not available to me and I understand this applies also to sanitary services, health board reports and hygiene reports of various kinds. I make this point because I do not want us, collectively, to entrust to local authorities who already do their job inadequately, and perhaps this is not their fault in many cases, the power to now be able to say "Here are 165 other regulations"— or however many there would be eventually —"to look after" when this is not being done now.
The manner in which local authorities are presently doing their job is inadequate, and I can give this in chapter and verse if one wants it. The quite extraordinary loophole in present planning permissions means that the full terms of the planning permission are not available either to any interested party or third party. That is staggering, and I have to admit that I only discovered it in recent times. Others may have known about it but I was surprised to learn about it because I thought one could get a fire chief's report in writing. I understand that some local authorities have recently taken up the job of doing that because the Minister's Department wrote to them. However, as a member of a local authority I know, with respect, how much weight is given to letters from the Department of the Environment and I would not be unduly comforted by that. This is a very important Bill and it is important that we take this aspect of it seriously. There is no point in having a set of building control regulations if there are going to be loopholes in them and if one cannot go along and see under what conditions and to what specifications a building is supposed to be built and what conditions attach to its planning permission. Apparently that is the position at present and I find it quite extraordinary.
The Deputy has surprised me somewhat in this connection. With regard to the planning permission schedule, planning permissions are granted or refused in so far as the conditions attach thereto are concerned. Even before the present Minister, who has a particular interest in this type of thing, came into office some if not all authorities had written report available to those seeking planning permission regarding fire officers' requirements. I accept that often a person who is submitting plans may have verbal discussions with the planning officers and the fire officers regarding certain regulations and arrangements. To my certain knowledge in the case of a particular local authority with which I am familiar, if it is stated in the schedule of conditions attached to the grant of a planning permission that a person must comply with the terms of the fire officer's report, a written notice is handed to that person stipulating the things that must be done.
That is the way it should be.
That is the way it is.
Not in every case.
I am disappointed to hear that.
Maybe not surprised, but it would be regarded by me as the normal practice that if planning permission is granted subject to compliance with the fire officer's report, which would have been furnished to the planning authority before the issue of planning permission, that report would be furnished to the applicant.
The grant of permission could be subject to the requirements of the fire chief.
Quite so, but any of those requirements, whether discussed verbally with the authority or with the individuals concerned, would be in essence a written arrangement that would have to be complied with. As far as I am concerned, it is being compiled with in that way. If it is suggested to me that there are some authorities who do not follow this procedure, I will see to it that conditions sought by the fire officer will be recorded and included with the planning permission. Otherwise, how could one pursue a defaulter subsequently? The written word would be needed to support the case. I am disappointed and a little surprised at what Deputy Quinn says. Small authorities have been carrying on that good practice for some years, without the back-up of staff and expertise that is to be found in some of the larger authorities. I will pursue the matter further.
I welcome the provision in the Bill that the council will look after the matter. What the Minister has stated would be the normal practice in the council that I know best. I have experience of several cases where the fire officer laid down requirements. We all welcome the provision that buildings should be inspected, but we must recognise the difficulties in regard to the availability of manpower to carry out these inspections. Staff dealing with planning are under severe pressure, especially in a developing county adjoining County Dublin. The staff of Meath County Council are under great pressure because of the vast number of applications received on a regular basis. The applications are becoming more technical and it is necessary to ensure that too many permissions are not granted in one area. We have had to take steps in our development plan to cater for this. We may include certain provisions in this Bill, but how does the Minister envisage their being carried out on a nationwide basis in view of the pressure on staff?
This all seems to come back to the question of certification, which is dealt with in section 6. I appreciate that there is anxiety about this point, but it is not covered in this section.
I take the point regarding our tendency to wander around this issue and not to stick narrowly to the section, but they are inter-connected. Perhaps the Minister could give an example of how he would see section 2 (2) (a) or section 2 (2) (b) applying. I have no problem about the proposal, which I think is correct, but how realistic is it? What fire authorities or local authorities currently in existence could conceivably be on a list which would be abolished? Perhaps the Minister could give that information without showing his hand as to the nature of local government reform.
The Deputy is in good form. I think that would be regarded as a politically leading question. It refers back to what the Deputy said earlier regarding co-operation with the authorities. There is something to be done there in the wider context of regional planning and development. As a principle local authorities should not just be prepared to co-operate but should seek each other's advice and assistance in particular areas of expertise which might not be available to them but might be available next door. What is wrong with that as a principle? What would be wrong with using the expertise of a strong local authority in an urban area in relation to planning, services and technical matters? I would include even the sharing of plant. I know this has always been resisted and that one keeps to the boundaries of one's own planning area. Where techncial advice is concerned, it would be appropriate to allow authorities co-operate with each other. I see nothing wrong with it. Obviously, it concerns the restructuring of local government and the number of authorities.
Local government reform.
Of course it is bound up with that. Deputy Quinn's point is well taken and for that reason it is included in section 5 as an option available to authorities, whether fire authorities or planning authorities, to seek assistance and expertise.
I take it that this provision is included to facilitate any subsequent local government reform, without indicating officially that Ballina and Castlebar are going to get the chop.
The Deputy could travel a little further north than east.
I move amendment No. 3:
In page 5, subsection (1) (b), line 16, to delete "structural alterations" and substitute "material alterations".
Paragraph 3, subsection (1) (b) as drafted provides that in relation to alterations, building regulations may only be made as regards structural alterations. It would be unwise to confine the scope of the regulations exclusively to the structural aspects of alterations but I am mindful also of the need to avoid regulating minor matters which do not warrant it. Substituting the word "material" will serve to allow sufficient flexibility while at the same time ensuring that regulations are not made in relation to minor or inconsequential alterations. It is a good way to allow some flexibility. I recommend the amendment.
Is it possible that the definition of material alternations might allow for getting out from under the building regulations whereby a person was carrying out structural change?
No, material alterations include structural change. It is important that there would be no means of escaping the requirements.
I move amendment No. 4:
In page 5, subsection (2) (a), lines 23 and 24, to delete "and convenience".
This amendment has been suggested by the Royal Institute of Architects of Ireland who have been in contact with me and with Deputy Keating. To my knowledge they have tried to contact the other parties in this House. In the interests of brevity and clarity the amendments have been put down in both names rather than repetitiously in separate names. There is a worry — I can only express it as such and perhaps the Minister might elaborate on this — in regard to extending the definition in this instance. It is readily understood and accepted that it is essentially a definition of health, safety and welfare. In what way is convenience not included in welfare and what does it mean? Behind some of these amendments is a worry I have to express on behalf of the institute and the design profession generally and that is the increasing level of litigation that surrounds the building industry. Every word takes on a new definition and a new connotation. If you put a committee of people into a room and ask them to consider a Bill in draft form they will see dangers where perhaps they do not exist. I say that with some sympathy because I think the Minister will recognise how difficult this is having regard to the impasse that has existed for three or four years in relation to this matter. What benefit is seen by the Department or by the Minister in including the word "convenience" that is not already covered by the word "welfare"?
I take the Deputy's point. He is showing his hand a little in so far——
There is no point in not doing so.
I understand that in so far as something highly technical like this is concerned people will show their hand in regard to amendments sought by interested bodies. There is nothing wrong with that if it can help to improve the matter. I have no great objection to the amendment the Deputy is pursuing. If the House agrees we can dispose of it now.
I am not very happy with the deletion of the word "convenience". I am extremely suspicious of the amendments to date from Deputies on this side of the House. They tend to be amendments pursued by interest groups and, as the Minister has said, there is nothing particularly wrong with that. It seems that the word "convenience" should remain in the Bill. Under subsection (2) the question of the provision of facilities for disabled and so on is dealt with. I am concerned that if we delete "convenience" there may well be other areas of concern to people who may not be affected by the building regulations or building regulations may be challenged on the basis that "convenience" was deleted in this House because it was not seen to be a concern with regard to building regulations. That is what concerns me.
I will come back again to the fact that most of the alterations in relation to this Bill have been suggested by various professional bodies who are obviously keen to ensure that their liabilities are limited to the greatest possible extent. My concern in relation to these regulations — I am not implying that it is not the same for everybody else in this House— is not for the professional bodies but for the people who will live in the buildings which are built under the building regulations that will arise from this Bill. I am reluctant to accept amendments which delete words such as "for the convenience of the people who will use the buildings".
I do not think anyone is going to go to the wall as a result of this amendment. It is reasonable for the Minister to take the odd suggestion from this side of the House. The discussion up to now has dealt with three amendments of a fairly peripheral nature. I get the impression that Deputy De Rossa thinks there is some massive gang-up by a group of people who have a vested interest in this matter. There are no amendments down in my name, nor I am sure in the names of Deputy Quinn or Deputy Farrelly, which would not assist the public whom we represent. Of course the public also include people who wear professional hats and I have no particular axe to grind against them no more than for them. The word "convenience" is a word of such generality as to be possibly open to being unjust to people who might subsequently be affected by its most extreme interpretation. There is an obligation on us to be as precise as we can in framing legislation. The word "convenience" is not as sharply focused as the word "health" which can be judged against some objective criteria or the word "safety" which is relatively easily understood. The word "convenience" can mean anything. It can have the most outlandish meanings. Theoretically that could very well mean that someone could take an action or pursue his own personal interest under this Bill in the context of something not being convenient to him, something which might be quite outlandish and completely contrary to public interest. The word "convenience" is not defined anywhere in the Bill. Even in the Oxford English Dictionary its definition is nebulous and general in nature.
The Minister has said that, as far as he is concerned, to leave out the word "convenience" would not damage the Bill in any way. Our reason for wanting to do so is not to remove responsibility from anybody. I want those who are involved to be fully responsible in law right down the line but we have to be fair also. There is no point in putting in a phrase such as "and for the convenience of" or any other such phrase. That kind of thinking comes across later in the Bill on one or two points which I hope to deal with.
I would have to say to Deputy De Rossa that if I thought for one moment that to concede this amendment would weaken the legislation in any way I would not even have considered it and I do not think the Deputies would have asked me to. I am not here to defend any sectional group or any vested interest and I do not think anybody else is either. It is right and proper, if Deputy Quinn, with his professional competence in the matter, has points which have been made to him either here or outside, of a nature that needs to be expressed here, that not only would I welcome them but that it would be his responsibility to make them. I am holding no axe for anybody. I just want to do what is right. I have reviewed this matter. What is proposed in the building regulations is that the matters that are needed can be provided under the revised wording, if the amendment is accepted. Everything we want to do can be done without any difficulty or problem and without minimising the legislation in any way. I should like to assure the Deputy on that.
I do not know whether it will be any comfort to the Deputy to say this but the word "convenience" is not included in the United Kingdom legislation in this matter. That is not to say that we could not do it, but it does not appear to me to be absolutely critical to the proper promotion of the legislation. For that reason I am prepared to concede it unless I thought there was an attitude developing in the House that said: "No, leave it in, it might have relevance". As Deputy Keating says, it could be taken to the ultimate and render otherwise good legislation nonsensical in minor respects. I would rather that it did not go that way. I think the Deputy's concerns can be catered for under the existing wording without the deletion of the words "and convenience".
What we are talking about here is giving the Minister power to make building regulations and that they may be made for all or any of the following purposes: for securing the health, safety, welfare and convenience of persons in or about buildings, persons who may be affected by buildings or by matters connected with buildings. Section 3 (2) then goes on to specify various other things that may be done as well. First may I say that words do not merely appear in Bills which emanate from their drafters without consideration having been given to the meaning of the various terms used.
That is what the Deputy says when he tries to change them.
I do indeed. I am making the point that I have often sought to change terms in Bills here precisely because I understood what was behind the usage of given words. I am seeking the retention of the word "convenience" here because I understand why its removal is being sought——
——in order to restrict the possibility, minor or otherwise, that regulations would be made to provide for greater liability on the part of professional bodies who will have to implement those regulations. I know that other Deputies on the Opposition benches here do not regard it as an important point and it may very well be that it is not important in the general context of the Bill. If you like, I am putting down a marker that I consider there is a need to ensure that the Minister has the power to make regulations which would provide for the convenience of persons in or about buildings and persons who may be affected by buildings or by matters connected with buildings. That is the point I am making. If the Minister feels that the provisions of the Bill are as well without the usage of that word I will accept his word on that, but I am not happy with it.
In the Deputy's state of unhappiness nevertheless I take it he will agree to the amendment being accepted?
I appreciate what the Deputy is trying to say. When one examines the matter closely one finds that the building regulations that I or any of my successors might make to deal with all of those matters really are not what we are talking about. We are talking about health, safety and welfare. If one were to apply the widest possible interpretation to those three aspects then it could cover everything, including convenience.
That is precisely the important point.
I would not like anybody to think that in the event of a building regulation being made, if one were building where the public might be gathering, somebody could contend that the seats should be 22½ inches as against 22 inches. Taking the interpretation of the word "convenience" to its ultimate, it might not be helpful, whereas the safety element applied to the regulation could cater for all of that, if required, in any set of circumstances. Therefore it is in the widest possible interpretation of the terms health, safety and welfare that I would consider the term "convenience" could be incorporated. Otherwise, I would not have accepted it. I can appreciate the Deputy's concern but he can be assured that it is not being done to accommodate any ulterior motive other than to get the widest possible interpretation of what is involved.
I move amendment No. 5:
In page 5, subsection (2), lines 36 to 38, to delete paragraph (f).
The discussion we have had for the last 20 minutes on the definition of one word in section 3 (2) (a) and the usefulness of such a discussion seem to me to be set at nought if there is a provision in legislation which subsequently says: "However, leaving aside all the foregoing, nevertheless we think the Minister should be able to make provision for such other matters as appear to the Minister to be necessary or expedient and are specified in the regulations". As a matter of principle I consider it bad practice for the State, or for a Minister, to take unto himself or herself the open-ended right, without further reference to the House, to seek power which is not specified or explicit in any way, as is suggested here. This is not true merely of this Bill but of many others also. I know this is a form of words used now and again. It is one of these catch-all, safety net type of clauses which allows for a certain degree of intellectual laziness, not necessarily on the part of the Minister, but a sort of feeling of "Well, if we have not covered everything else we will cover it in this way".
In principle I contend it is not right. Ultimately, Governments and Ministers serve the public and are elected by them. It is wrong for the bureaucracy of the State to set itself up as some kind of ultimate arbiter and propose a clause like this which means effectively that nobody can predict with any degree of certainty what might be sought under the guise of that clause at any time in the future. I do not like that general principle, that "building regulations may be made for all or any of the following purposes ... making provision for such other matters as appear to the Minister to be necessary or expedient and are specified in the regulations". The last part "and are specified in the regulations" is probably fair, but the words "as appear to the Minister to be necessary or expedient" are very subjective, both the words "necessary" and "expedient" being subjective terms. There have been the occasional times in our political history when the definition of the word "expedient" by a Minister might not necessarily have coincided with the common good, even allowing for the fact that this falls into the broad area of building regulations. I merely make the point that I consider the wording of legislation should not be that loose or sloppy. My reason for tabling this amendment was to make that point publicly.
In these circumstances I was somewhat surprised that the Deputy tabled this amendment.
I am pleased at my capacity to surprise the Minister.
Applying the line of thought the Deputy has expressed in so far as other legislation or measures contemplated by the Oireachtas are concerned, there might be some validity in it but I do not think it has validity here for the following reason, that the effect of the amendment is to delete section 3 (2) (f). The Bill is required largely because the enabling powers of the 1963 Planning and Development Act are now inadequate in regard to building regulations which can only address health and safety matters. The special needs of the disabled and energy conservation are not included in the 1963 Act as purposes for which such regulations can be made. It would be wrong to allow a similar situation to develop at some future date simply because we cannot now anticipate all the reasons we may need building regulations in the future including, for example, advances in building technology, on which Deputy Quinn made a point earlier. We do not know what will be the technological building advances of the future. Why cut ourselves off from the possibility of accommodating those advances in this legislation? Why not at least allow ourselves the possibility of making such changes, if necessary, in the future? In fact, even new skills and practices in construction might have to be addressed in a different fashion.
In my view the general power conferred in section 3 (2) (f) should stand. Of course, the overview would have to be expressed here that any regulations any Minister for the Environment might contemplate would have to be laid before the House anyway. If it was discovered that they were unsatisfactory or draconian in any way then they could be annulled by the House. That is the overall power of the House which it is important to understand in relation to any regulations of this nature. All I am seeking is enough power to catch things that might not now be contemplated but which would have a very significant relevance in the future. I would ask the Deputy to see it in that way and to perhaps withdraw his amendment.
Section 17, which provides for the orders and regulations, is a standard section used frequently in this House in which regulations become law if they are not annulled. I have no dispute with the mechanism, but in view of the impact of the regulations to be administered by this legislation I will be open to the Minister's argument if the section is changed and the regulations would only come into law when approved rather than if not annulled. We should have a positive method of intervention rather than a negative one. Deputy Flynn has been in the House for as long as I have and I doubt if either of us can recall regulations that have been annulled. It is not the sort of thing that happens in this House. If there is logic in the flexibility being provided for in subsection (2) (f) it only becomes subject to effective parliamentary scrutiny and control if section 17 contains the possibility for a positive intervention rather than a negative one. I do not feel strongly about this amendment but I can see the sense of what Deputy Keating is saying and that it is really at the core of parliamentary scrutiny.
Will the Minister elaborate on why he and the Department feel it necessary to describe in such a detailed way what is contained in section 3? I find it hard to understand why the section has to be so specific, and then we have this all pervading subsection (2) (f) clause as well. This is a very long and elaborate section running to two full pages and it is not the normal section one sees. There seems to be a belt and braces and perhaps a second belt being wrapped around this section. The draftsman has set out clearly the different ways in which these regulations can be applied and then thrown in something like this global clause in the end. If one takes the extent of the section in the first instance, the all embracing power implied in section 3 (2) (f), and then looks at the mechanism for the making of the regulations which will go through on the nod here in this House, I am not so sure that it is the best way to make law for regulations. Perhaps the Minister will elaborate?
It is a good thing to have parliamentary scrutiny attached to regulations. The reason I cannot remember offhand something having been annulled or having been sought to be annulled is because in general very great care is taken in making regulations subject to legislation being passed. When the regulations are made and are available to the House they are good regulations, and I cannot say any more than that. If it ever comes to pass that regulations are going in the wrong direction so far as the legislation is concerned, then they will be annulled. This is a good practice and we should not minimise what has stood the test of time.
In other legislation when we tried to cover specific things that needed to be covered we were always asked why we did not cover something else that came up later. That is the reason this is being included in that way. We accept that a specific reference should be made to the disabled. I would like to see that reflected in more legislation which will come into this House, particularly in relation to the construction industry. There is good reason for having that subsection in the way it is.
Conservation of fuel and energy became a very big issue, bigger than it is now, but, so as to continue to have people reflect on it as a major issue that might have an enormous relevance again should certain economic or international factors occur, it is good to have it included as a specific. The other references in paragraph (d) "the efficient use of resources" is really a catch-all as well as is the phrase "the encouragement of good building practice" in paragraph (e). Good building practice is something that should be fundamental to the section but it happens to be specified there. I see it not as a specific that should be isolated but as something that is an overview of what should be the normal practice in these matters. Paragraph (f) is put in to cater for a case where something which is not contemplated occurs in the future or for a change of practice or in building types. We cover all these things anyway so as to have the freedom to move if we so wish in the future. It is as simple as that. This has to be subsequently supported by regulation which comes to the House anyway and which can be changed if the House so decides. We are preaching two kinds of philosophy. We are seeking this in other legislative proposals every day in the House. We are including this here now and it should be allowed because it gives us the power to move should we need to in the future.
I will not press this any further, but one of the reasons we are seeking this is because of the way in which the House operates. Because of the manner in which the business of the House is ordered we do not get a lot of business done, so there is a fear that if we do not get every possible option available to us right now in the context of a Bill like this we may never again get the chance. The Minister made the point that there could be a change in building practice or that there could be new technology. These two options are already covered. In principle we should be as explicit as possible. It is feasible for the Minister and his Department in looking at the next 20 or 30 years in construction to be able to suggest what might arise and be able to make those possibilities quite explicit in the section.
The Minister referred to one or two catch-all phrases. At least these phrases are relevant. To make provision for securing in relation to building an efficient use of resources is relevant, but to make a provision for "such other matters as appear to the Minister to be necessary or expedient" is so general that the Minister could just leave that clause in and leave the rest of it out except for the case the Minister made about wanting to address the needs of the disabled. In the same section there is a reference to persons who may be affected by buildings or matters connected with buildings. I do not know if the Minister is talking about piping extensions or what.
It would have been more acceptable to the Deputy if I had specified things like technology skills and practices, but then I might have left out something and then I would be criticised subsequently for not having included it.
By the time we discovered that, you and I and the rest of us here would be working on another plane.
No fear. I am not pressing the Minister. I am just making the point that he should be as explicit as possible.
The former Administration did not happen to get rid of this in the special committee where it was being dealt with——
The chalice has been passed to you.
——in a technical way rather than having to bring it back here. Deputy Quinn has been pressing for this legislation to be brought back and in the end I said that it could be brought back. It is a shame it had not been concluded because then the regulations that would have been expected and desirable over the past number of years could have been made, including some of the things we have been trying for here for some time. It was in deference to that point of view that I said, let us do it. There are a number of sections being removed or restructured. This is tedious now, but it could have been dealt with and disposed of in another way. Unfortunately that has not happened and I am now going to pursue this until it is finished and the Minister can make regulations, and can be pressed by Members of the House to make regulations, in specified areas, which he cannot do now.
Deputy De Rossa rose.
I thought Deputy Keating was about to accept that he would have to live in this world of imponderables and we might move on, but obviously Deputy De Rossa has something to say.
I will be brief.
I was hoping we might dispose of this before Christmas——
We should not rush into this.
We have not rushed it.
I am anxious that the Minister retain paragraph (f) with the proviso that regulations be made on a positive basis. It may be that in time the Minister might want to make a regulation regarding the convenience of those who use buildings——
He does not give up easily.
——and it would be important that he has that power. I think the Minister has accepted the general principle, although he has not indicated that he would agree, perhaps on Report Stage, to make the regulations by way of positive motion, and it would be important that he indicate that.
He said motions to annul regulations do not generally appear here because the regulations are so well made. I dispute that. The fact is motions to annul regulations can only be debated in Private Members' Time and, by the nature of things, parties in Opposition are reluctant to use their Private Members' Time to debate the annulling of regulations.
If the Minister is not prepared to introduce an amendment which would make for positive motions, the least he might do is to insert a section which would indicate that motions to annul regulations would be taken in Government time.
I do not want to pursue that, but if we had to accept the attitude expressed by Deputy Quinn and Deputy De Rossa so far as all regulations——
——in all legislation are concerned, nothing would be done in this House.
I will clarify what I am concerned about. Let us not fool ourselves. If there was such a thing as the Booker Prize for legislation, I do not think this draft Bill would be on the short list of contenders.
To illustrate that point, there is repetition. Deputy Keating's amendment to paragraph 3 (2) (f) seems to be repeated in its entirety on page 6, subsection (9) "Building regulations may contain such supplementary and incidental provisions as appear to the Minister to be necessary or expedient". I do not want to take up the time of the House criticising or polishing this legislation. That is not my concern.
Not any more.
Let us make a little Christmas pact. In the spirit of seasonal goodwill let us not throw out the baby with the bath water. That is my concern. I have no strong views on what Deputy Keating is proposing. There are other parts of this section about which I would like to talk. It seems that for reasons best known to the draftsman, very extensive powers have been given to cover anything that might be relevant in the future in relation to building regulations.
The core point — and this was supported by Deputy De Rossa — in relation to the coming into effect of the mechanism which gives legislative operation to this Bill and the administration of the building regulations, will itself be substantive legislation. The actual prescribed form of certification will contain the essence of this Bill, and will contain the essence of protection for the public. It is in relation to that point that I believe the House should see this and formally approve it. I do not for one moment contend that the normal section, in this case section 17, should be reversed and that every regulation pertaining to every piece of legislation enacted by the Oireachtas should come before the House by way of positive motion. However, we can deal with section 17 at the appropriate time.
I move amendment No. 6:
In page 5, subsection (3), line 39, to delete "For the purposes of" and substitue "Without prejudice to the generality of".
Another Booker Prize second thought.
I suppose the reason Deputy Quinn was being so generous in calling for a Christmas truce on some of the drafting is that this legislation goes back through a few Administrations and consequently we will all take our share of the promotion of something which was not perfectly drafted, but we are trying to improve it now collectively.
Too many cooks.
The history of the Bill is laced with all kinds of drafting problems and perhaps we can improve on it now. This is a drafting amendment which simply provides that the scope of paragraph 3 (1) (d) is not limited by the definition of material change of use in subsection (3) of this section.
May I clarify that the purpose of this amendment is not to confine the definition of material change——
That is fine.
Amendment No. 7 in the name of the Minister. Amendments Nos. 14, 26, 28 and 29 are related. It is proposed that amendments Nos. 7, 14, 26, 28 and 29 be taken together. Is that agreed? Agreed.
I move amendment No. 7:
In page 6, lines 8 to 18, to delete subsection (4) and substitute the following:
"(4) Building regulations which relate to—
(a) buildings as regards which any material change takes place in the purposes for which the buildings are used, or
(b) material alterations or extensions of buildings, or
(c) the provision of services, fittings or equipment, in or in connection with, buildings,
may apply to a building, the construction of which was commenced before the operative day, in so far as such building is affected by any material change in the purposes for which such building is used or any material alteration, extension, provision of services, fittings or equipment, as the case may be, which occurs on or after the operative day and in all other cases building regulations shall, subject to section 20 (2) apply only to buildings the construction of which is commenced on or after the operative day."
Section 3 (4) provides that with the exception of material alterations, extentions and provision of services, fittings and equipment, building regulations shall only apply to buildings the construction of which commences after the coming into operation of the regulations.
The amendment I am putting forward addresses two aspects, the more substantive of which ensures that the regulations may deal with the material changes of use in existing buildings. In view of the vital importance of this provision — and in this context I am thinking of buildings like the Stardust — I consider it essential that the ability to regulate for material change of use in existing buildings be put beyond all doubt. The other change affected is the amendment of structural alterations to material alterations, the reasons for which we have already discussed in amendment No. 3. I think Deputy De Rossa raised that point and he was satisfied on it. This is an important matter and I recommend the amendment.
We need some clarification because there are other amendments linked——
The other amendments will be moved separately.
I appreciate that but if we agree to this amendment there will be no debate on the others. As I understand it, the Minister is deleting in page 6, line 12 of the original Bill "the construction of which was commenced or was completed before the operative day". The Minister's amendment takes out the words "or was completed", so in effect we are talking about the principle of non-retrospection at one level. Is that correct?
Yes, as far as that is concerned.
I would like to tease this out. I am not clear on the full implications of this change. This amendment makes two changes, first in the Bill as initiated the building regulations relate to section 3 (4) (a) and (b) but we now have three paragraphs (a), (b) and (c).
That is correct.
I have no great problem with that. However, some thinking has gone into the element of retrospection because following paragraph (c) it further states:
may apply to a building, the construction of which was commenced before the operative day, in so far as such building is affected by any material change...
That substantial paragraph in the amendment is different from the original section in the Bill as initiated. In his amendment the Minister has removed the words "or was completed before the operative day". Perhaps the Minister would indicate why that has happened?
I have a question on the same point. Was this amendment considered or discussed by the Joint Committee?
So this is quite new?
May I tell Deputy Quinn that the building could not be completed unless it was commenced and that is the reason for that change in the wording. It was necessary to alter the words because the building could not be completed unless it had been commenced.
We have not reached Christmas yet. The building regulations in the Bill as initiated would apply to buildings which were commenced or were completed on the operative day. However, I may be misreading this——
Before the operative day.
Were completed before the operative day. Is the effect of the ministerial amendment to ensure that building regulations will not apply retrospectively to any building that currently is now completed and will be completed on the day on which this Act will come into force?
Why am I misreading the Bill?
I understand what the Minister is saying, that is, if the building is commenced before the operative day that supersedes buildings which were completed before the operative day. In other words, the building could not have been completed before the operative day unless it had been commenced way back?
That is right.
So that any building commenced before the operative day by definition embraces the first category of those completed before the operative day?
The philosophy has not been changed and the principle is not changed in regard to what you, Deputy, understood to be in the Bill as initiated; but it is not necessary to have it enunciated in the way it was previously and consequently the draftsmen have made the change that is there. The principle is unaltered and this is for the reason Deputy Keating has outlined.
Amendments Nos. 8 and 16 are related and therefore it is proposed that the amendments will be discussed together.
Amendments Nos. 14, 26, 28 and 29 are related to the earlier amendment that was accepted. Have these amendments now fallen?
Those amendments will be dealt with separately when we meet them. They were taken with the earlier amendment for discussion only but they will have to be moved individually when we reach them.
If necessary, a Leas-Cheann Comhairle, could they be discussed?
The Deputy may refer to them, but it would have been assumed they were discussed already. However the Deputy may have some points which he wishes to raise in the meantime.
A Christmas pact.
Which Christmas? I move amendment No. 8:
In page 6, subsection (5), line 20, after“section 4” to insert “,section 5 or section 7*”.
Section 3(5) requires compliance with the Building Regulations, subject to any dispensation or relation granted under section 4. This amendment is necessary to include references to sections 5 and 7, as dispensations and relaxations can also be granted by the Minister or An Bord Pleanála, under these provisions.
I move amendment No. 9:
In page 6, subsection (5), line 21, after "constructed" to insert "materially".
The purpose of this amendment is to try to ensure that the words are explicit and self-explanatory. The qualification of substantial compliance or material compliance——
Sometimes it might be helpful if I made my case in opposition to the amendment. Often in amendments of a technical nature it is often helpful to hear what the objection is.
In another code of behaviour this is called getting your retaliation in first.
However it could be helpful to the promoters of the amendment and it might help to change their minds.
This amendment introduces a concept of uncertainty into the area of compliance with the building regulations which could be argued and interpreted differently by the different people, designers, builders and indeed the courts and is therefore unacceptable. The legislation must require full compliance with the building regulations, to do anything else would make it ineffective. However, I am aware of the inexactness of the science of building and of the anxiety of the building industry in this regard. I will be looking at the regulations to be made under section 6 and in particular at the wording of the certificate to be lodged with the Building Control Authority by approved certifiers to see to what extent the points raised by the Deputies collectively can be catered for.
The Minister has put his finger on the core of our concern, which is about liability. In this context I would like to clarify a point made earlier by Deputy Proinsias De Rossa and to which I did not reply at that time. The reason that this Bill has not been advanced for quite some time is because of the severe difficulties in relation to the alternative methods of administration. In fact, the construction industry would prefer if the local authorities at national level administered the building by-laws, now the building regulations, in the manner in which Dublin Corporation and the other large local authorities do. We are moving away from that. Lest Deputy De Rossa think so, there is no desire to privatise it; on the contrary this is a chalice of such potential poison that they have resisted coming into the room to look at it, let alone to handle it for such a long time. Part of the reason relates to a large body of law and litigation in the other jurisdiction, which for some legal reason is transferable by way of precedent to the Irish jurisdiction. We have heard this before now and it is not appropriate for me at this stage to go into it at any length because that will come in section 6 when we are talking about the certificate. In deference to the Leas-Cheann Comhairle who wants us to move along I will not elaborate on that point.
"Substantial compliance" is the kind of phraseology that has surfaced invariably in relation to certificates that people would sign "to the best of my knowledge" or "to the best of my ability"— that kind of qualification that allows for the human condition and human frailty, the absence of which would lead to locking somebody irrevocably into something over which he might not have 100 per cent control.
That is right.
I do not think anyone disputes that argument. Should we put in a qualification on the word "compliance" at this point of the legislation or should we put it in at section 6 in relation to the certificate? We do not have the certificate in front of us and we are in the process of making law. The only way we on this side of the House can address ourselves to a concern which I think both sides recognise as being not unreasonable is to do it within the framework of the legal process itself. That is why some recognition is being sought for the problem to which I have referred. If the Minister wants to consider this he can come back on Report Stage. I do not want to weaken the building regulations.
As I understand it the amendment would derive from some of the professions' anxiety that minor breaches of the regulations would be prosecuted by building control authorities. Given the inexactness of building as a science there will be minor breaches. I think Deputy Quinn is getting at that. Because compliance has to be absolute all regulations have this clause built into them and in the final analysis the courts, as he says rightly, will decide reasonableness and unreasonableness.
As an example of the type of certificates that can be produced I refer the Deputies to the form of certificates prescribed by the regulations in relation to the Local Government (Multi-Storey Buildings) Act, 1988 which includes the words "subject to the procedures and tolerances of normal building practices". That is already there. The form of the certificates is a matter on which I will be seeking the avice of the building regulations advisory body who will be set up under section 13 of this legislation. That is an enormously important section. The regulations that will be made will be before that advisory body, who will include the people whose anxieties Deputy Quinn is expressing now — and I can understand that. They will have their say: the professions, materials people, developers and all the people you would like to name who should be included on that advisory body. Therefore, the Minister will have that advice. That will overcome much of the anxiety expressed by Deputy Quinn here on behalf of people who, I appreciate fully, would have anxiety in this regard.
Let me say, without seeming to cut Deputy Keating off, that the original amendment was pursued at some length in the Oireachtas joint committee by the leader of his party and, after all the talk and the necessary assurances regarding the advisory body, he withdrew it. I am not making that as a point that the Deputy should withdraw this but, having considered everything, particularly the section 13 proposal for the advisory committee to be set up to deal with these matters, it was regarded as satisfactory and sufficient.
Is the Minister saying that the phrase which he quoted from the certificate about provisions being subject to the normal stresses, tensions and tolerances——
Subject to the procedures.
——in this area is implicit in the section or is it likely to be part of the certification in due course? There is a certain degree of concern in some quarters about the kind of microscopic compliance which might be sought by some people in the real world. I hope it will not develop into an opportunity for even minor breaches of the regulations. They were suggested to me almost as a larger scale of evasion. I am talking simply about compliance of the level referred to in the phrase the Minister used regarding writing the certificate. If that is the case I am quite happy about it and will be happy to withdraw the amendment.
I do not think it would be right for me to pre-empt what the building regulations advisory body might recommend subsequently, but should they consider that phraseology as adequate I would be happy to consider it favourably. Deputy Quinn and I had this out when we were talking about other certificates for other legislation and I had to pull a great deal to get any advice at all in the matter from the outside professions. I hope when this advisory committee are set up they will be helpful and constructive rather than trying to negative anything we are seeking to achieve.
On that last point I accept broadly the Minister's assurance, but he quoted a phrase "procedure and tolerances" that is obviously on the form of certificate in relation to the multi-storey buildings legislation. Has that certificate been accepted by the ACEI and others?
I understand that some of the certificates and the formulae attached thereto have been accepted; we have no indication they are not accepting them. However, I take the point and I think we can relate the two. I would be much happier on the question of the type of certification and the wording attached to it if we could get it agreed between the departmental staff and their experts and the people involved with this on a day to day basis so that there would be no hassle subsequently as long as the overriding position is, as Deputy Keating suggested, that in no way are vested interests or groups seeking to undermine the philosophy or the principles enshrined in the legislation.
On a point of order, for the benefit of the recorders I should state that ACEI are the initials of the Association of Consulting Engineers of Ireland.
Can we embody Deputy Farrelly's happiness in not pressing this?
Yes, on the basis of the Minister's commitment.
I move amendment No. 10:
In page 6, between lines 35 and 36, to insert the following subsection:
"(7) Building regulations may be made to any extent by reference to a document published by or on behalf of the Minister.".
The most frequent sustained criticism of the proposed building regulations has been that practitioners in the building industry state they have difficulty in using them in view of the uneasy alliance in the proposed regulations between the legal format in which they are drafted and the technical concepts which they enclose. In England and Wales building regulations have been simplified by separating out the technical concepts from the legal format. This has been achieved by using regulations containing simple, functional requirements supported by approved documents which contain the necessary technical details written in a type of language the building industries are familiar with. The evidence to date based on the objective surveys in England and Wales suggests a high level of users' satisfaction with the new approach and my Department are considering the redrafting of the proposed building regulations in a similar format. For that reason I recommend the amendment to the House.
Is everybody happy that we should accommodate thevox populi?
Very much so. I am very much in favour of demotic English.
We thought we were thevox.
You are not going to let the person who wrote this Bill out like that, are you?
I had not thought of it.
Perhaps that is unfair comment because it is not an easy thing to do anyway. I want to be clear that I am interpreting this amendment correctly. Are we proposing in the amendment to replace with a new section section 3 (7), which provides that "Building regulations may specify different standards for, or make different provision in relation to, different classes or description to buildings"? Is it a replacement?
No. It is an addition.
And there will be a consequential change then in the numbering.
One point concerns me most particularly in relation to the section. Subsection (4) at the last line says that the building regulations will only apply to buildings, the construction of which is commenced on or after the operative date. It is obviously important to have a clear cut-off or commencement date from the point of view of liability. However, there are considerable numbers of buildings, some relatively new, which would not be certified in terms of access or safety or health. We hear talk at the moment of "sick" buildings and we know there are quite a lot of buildings which do not provide for access for disabled people. Perhaps the Minister would indicate what his thinking on this is. Is there any way in which we could say that over a number of years we will seek to have buildings comply in a minimum way in relation to particular aspects of the regulations in relation to health, safety and access in particular?
Another point is that there is no obligation on the Minister to make any of the regulations. He may make regulations in relation to any or all of the matters. Obviously we know he will make some regulations because there would be no point in dealing with the Bill otherwise. Again I would like the Minister to indicate his intention to make regulations in relation to the matter specified because the Bill as it is constructed says he may do and not that he shall do.
Deputy Quinn said that the professional bodies are not keen on taking on board the responsibilities under this Bill. That may well be, but it is only because they are reluctant to take on board the liabilities that this Bill will place on them and I know that a lot of pressure has been exerted to restrict their liability. In other words after a certain number of years their responsibility for defects or whatever in relation to the certification or the carrying out of certain works under this Bill will end. The question has to be asked where the liability then lies. Does it come back to the local authority or to the Department or to the Minister or where? It may be that I am jumping a number of sections to deal with this issue but having dealt with section 3 it is important to put it on record that professional bodies are trade unions in a sense. They represent their members and the generality of the views of their members. By and large we would accept that architects, valuers, engineers and so on do a job of work to the best of their ability, and there are some very excellent ones, but it has to be said also that any professional body or any person in the professions would be loth to refuse the business that will accrue as a result of this Bill because it will mean extra money for them. The only reluctance seems to be in regard to liability; they want to restrict their liability. It is my concern to ensure that if they are taking on this responsibility, they take on the full liability.
I have resisted taking up the time of the House so far but at this stage there is something I should put on the record of the House because it relates to this section. Let me explain what the design profession actually is because I think the record should contain this information explicitly and clearly. The design profession signs contracts and assumes liability for between ten and 12 years depending on the nature of the contract and there is full liability for any defect that would arise within that period. It is the normal contract one gets with any service, commodity or product and there is no dispute in relation to accepting that responsibility. That was the position that prevailed for quite some time and it was the law of contract that governed liability, professional negligence and incompetence. I am speaking from memory now of a seminar I attended on professional liability and indemnity about four a half years ago, but what I am about to relate can be verified.
There was a ruling in England arising from a case that said that the contract liability period of 12 years starts from the time the defect is noted. Therefore, one could have a building 25 years old in which a defect occurs and after which the owners would have 12 years to sue for negligence and liability. Let me give Deputy De Rossa an example of what actually happened. This is a case history and some of the officials assisting the Minister would have a detailed knowledge of it. There was an architect in England who designed a school for a local authority and who retired from practice at, perhaps, the age of 65 but who maintained his professional liability insurance in retirement for a period of 12 years. When he was in his eighties he got a letter from solicitors acting on behalf of clients he never knew or recognised or worked for who had bought the school building from the local authority and were now using it for another purpose suing him for professional incompetence in the construction of the building.
What happened was that in the late seventies or early eighties there had been an extraordinarily hot summer which had completely altered the level of the water table in whole sections of Britain and as a consequence the ground bearing pressure was significantly altered which in turn led to differential settlement in the building and this resulted in a crack. Every conceivable design manual giving the bearing pressure of that ground and the atmospheric and environmental behaviour and performance etc. indicated that the construction and the fabrications of the design foundations and so on were done in accordance with acceptable practices and procedures. Yet the people concerned were able to get into court on the basis of this particular interpretation. I am not a lawyer and I may not have the full legal details accurate but it is a matter of record. That change in the law of contract to include the law of tort meant that designers became permanently and eternally liable for their buildings even though all sorts of things could change.
In relation to the "sick" buildings to which Deputy De Rossa refers, some of which are on the corner of St. Stephen's Green, the design of the pre-cast panels was three steps removed from the execution of them. In other words we had the architect, then the engineer and then the specialist engineer in the company who got the subcontract to make the pre-cast panels, and that company have subsequently gone out of existence. In law the aggrieved party goes back up the line and eventually the case lands on the desk of the surviving design organisation. I do not want to in any way prejudice cases that are currently in the courts and it would be inappropriate for me to do so; but it is for the reasons I have stated that there is an extraordinary new fear in the last four or five years in the entire construction profession and the consequences are that many people will not be able to work adequately and projects will not be built because the insurance cover necessary for their construction or design will be so prohibitive cost-wise that people will not be able to practise.
The House will be aware of the concerns of the design profession. They are some of the reasons why we have had a difficulty for some time in regard to certification. The construction industry would prefer if the system of administration operated by local authorities, such as by-laws and so on, applied to the entire country. However, we all recognise that that would cost a lot of money even if fees were charges for by-law applications. When we reach the section in the Bill which deals with by-laws I will propose a parallel system for the Minister's consideration. However, it is important to nail the idea that the construction industry, in the broadest sense, is trying to evade its responsibilities. By virtue of legal interpretations in the court they have been given an open ended cheque. If one buys a new car one gets a five year warranty with it, not a 25-year or 45-year warranty. That is what is at the core of a lot of our problems and the House should be aware of it.
I should like to refer the Minister to some of the extraordinary language used in subsections (9), (10) and (11). Subsection (9) states:
Building regulations may contain such supplementary and incidental provisions as appear to the Minister to be necessary or expedient.
Subsection (10) states:
Building regulations may exempt, in whole or in part, from all or any of the provisions of such regulations such classes or descriptions of buildings...
Subsection (11) states:
Building regulations, or any provision contained therein, may be made so as to apply generally, or as regards any area specified in the regulations, and the regulations may contain different provisions for different areas.
That could be anything.
Whoever devised those subsections should get an accolade for assisting the Minister to deal with the furthest outreach possible for the longest possible length of time over the most comprehensive area possible. I should like to ask the Minister a question in relation to subsection (12). Will the Minister say why it is that building regulations shall apply to buildings belonging to or in the occupation of the State, with which I am happy, other than buildings which are used as prisons or places of detention? Obviously, there is a reason for that but I wonder why the standards should be open to being inferior for places of detention or prisons. What is the rationale behind that provision? I accept that many of the buildings are very old but I gather that there are proposals to erect new buildings and I do not see why they should be exempt.
This must be the only piece of legislation introduced since the foundation of the State that has had three different Ministers responsible for it, Deputy Kavanagh, Deputy Boland and now Minister Flynn. There has been one from each party carrying responsibility for it before it becomes law. I suppose that the answer to the Deputy's question is that the parliamentary draftsman was trying to accommodate us all in this regard and we should express our appreciation for that.
A response for the three Ministers?
The only people who did not have an opportunity of getting involved in the preparation of the Bill were Deputies Quinn and Keating. If there are serious problems with existing buildings, to reply to Deputy De Rossa, there is legislation to deal with them such as the Dangerous Buildings Act or the Fire Services Act. The building regulations we are referring to are concerned with design and construction and buildings that do not have adequate access to and egress from so far as the disabled are concerned. I share the Deputy's point of view in regard to them but I am sure he will accept that much has been done in regard to that matter. While it was not mandatory on builders to cater for the disabled in recent years, because of the lobbying of the Irish Wheelchair Association and other interested parties, an enormous amount of work has been done. Existing buildings have been renovated to accommodate the disabled and I support those moves. I have spoken to representatives of organisations who have an interest in the disabled and in their right to have proper access to and egress from buildings, and other facilities such as lifts, and I have made them aware of my personal interest in those matters. I have told them that where we can we will accommodate the disabled. I am sure Deputy De Rossa will agree with me that modifications have taken place in recent years. It is important that we should impress on those who have not carried out such work the need to do so, particularly when they are carrying out reconstruction work.
I should like to tell the House that it is my intention to make regulations. I was asked if this would be pie in the sky but that is not so. The building regulations were issued in 1984 and, by and large, they are being complied with. It is the manual that is attached to construction and design work now.
Except in regard to the problems relating to fire. They are as Byzantine as the national lottery in their application.
It is my intention to make regulations for most, if not all, of the matters referred to in the book on building regulations. Of course, the Bill does not deal with the question of general liability, an issue raised by Deputy Quinn. Existing common law provisions in relation to civil liability will continue to apply. Deputy Quinn has expressed anxiety about that area but he is not seeking to minimise the need for control in design and construction.
I accept that. Deputies will be aware that the Minister for Justice is responsible for matters relating to civil liability. The Department of the Environment have advised the Department of Justice in the matter and made them aware of the concerns expressed by design professionals and other bodies in the construction industry. We have asked them to take them on board. By and large we have got this reasonably correct. I concede that the parliamentary draftsmen has made it possible for the Minister of the day, whoever he may be — three of us have had our hands in this — to do all that is necessary now and in the future to accommodate changes in practices or technology. I am sure the House will concede that it is right and proper that the Minister should have a right to deal with problems that may arise rather than being obliged to introduce legislation in the House.
Will the Minister reply to my question as to why buildings which are used as prisons or places of detention are exempt?
The reason is so obvious that one does not think about it. It relates to the question of egress, the question of security.
I understand that there is every problem about getting in.
We could not have standards of fire escape prescribed for prisons.
It is purely because of the security element that they have to be exempt to enable them to carry out certain jobs of work that might not in the normal circumstances be applied to other buildings.
I am not totally statisfied with that, bearing in mind that these are optional for the Minister to implement. I would be concerned that people who are incarcerated in these places would at least have a reasonable standard of construction in those facilities. I wonder whether this is an opportunity for such places to be built in accordance with standards which would not be acceptable generally.
It is not.
I know it is not the intention, lots of things happen that are not intended. Prisons and places of detention seem to be open to being subject to at least some of the regulations which the Minister would make.
I think it is agreed that our most recent example of building, so far as places of detention are concerned, is to the highest standard of security.
I do not know because it has not been opened yet.
The professionalism attached to the design and construction is there and is obvious for everyone to see. I do not think we can make an issue about that.
Let us hope we do not have to build too many of those places because it does not seem to be relevant.
If we did not have to build those places this would not be relevant at all.
In relation to the question of retrospection, I acknowledge, as the Minister has done, that there has been progress regarding the provision of access for disabled persons in buildings. Nevertheless, there are buildings which have been built since 1984, when this Bill was first introduced, which do not provide for access of persons with disabilities. We should be looking at some way of trying to ensure that at least public buildings comply with building regulations, even though they may have been built and completed before the date on which these regulations come into effect. I am not sure what way that could be done. It may be that it could be done solely in relation to buildings occupied by Government Departments, State agencies or whatever. It would probably be difficult to do it in privately occupied buildings. I wonder whether the Minister could give an undertaking in relation to that matter. I have in mind the building across the road where we hold committee meetings. It used to be called Setanta House but I think it is now called Kildare House. A person in a wheelchair simply cannot get into that building unless there are at least two other people there to lift them up the seven or eight high steps. Then there are two doors which create a problem in relation to how they open. I do not know to what extent that problem exists in other buildings occupied by State Departments. Indeed, I may well put down a question to the various Departments in relation to that matter.
In dealing with a Bill which is trying to establish standards on a legal basis we should be addressing ourselves to buildings which are already in existence and which may never come to our attention under these regulations unless they seek to have alterations of a significant nature carried out. We should try to find a way of ensuring that buildings are made accessible. That is the reason I am pressing the point with the Minister. Can he indicate whether he is prepared to consider introducing on Report Stage, or under some other legislation, the question of applying at least some of the regulations to buildings already in existence?
All I can say to that is that matters such as this have been considered by members of local authorities over the years on a continuous basis and a very good response has been achieved where it was feasible or where there was not enormous cost attached to it. I do not know what exactly is the position in Setanta Centre. While it might be difficult to gain access because of steps and whatever, sometimes there are lifts from the carpark underground. I do not know whether they exist in Setanta but I would be surprised if they were not there.
It does exist——
Often the difficulty is where the easy access is.
——but it is not signposted. You have to go around the back.
I have an interest in this matter. I will undertake to contact all my colleagues in this regard. In all the buildings they have available to them I will ask them to seek to make access for disabled people a matter of concern for their maintenance staff and that where possible they would have it clearly indicated how people who are disabled might gain access. We are all agreed on that.
Everyone in the House is agreed.
I move amendment No. 11:
In page 7, before section 4, to insert the following new section:
"4.—(1) Subject to the provisions of this section, a building control authority may, if it considers it reasonable having regard to all the circumstances of the case, grant a dispensation from, or a relaxation of, any requirement of building regulations in respect of buildings or works which are situated within the functional area of the building control authority and—
(a) which are designed, constructed or carried out by or on behalf of the building control authority, or
(b) in relation to which an application for such dispensation or relaxation has been submitted pursuant to subsection (2).
(2) An application for a dispensation from, or a relaxation of, any requirement of building regulations shall be made in the prescribed form, and any such application shall be accompanied by the prescribed fee (if any).
(3) Building regulations may provide that in respect of any specified requirement of the regulations, subsection (1) shall not apply.
(4) Where, within the prescribed period, a building control authority does not notify the applicant of the decision on an application for a dispensation from, or a relaxation of, any requirement of building regulations, a decision by the building control authority to grant the application shall be regarded as having been given on the last day of the prescribed period.
(5) A building control authority may make a dispensation from, or a relaxation of, any requirement of building regulations granted pursuant to subsection (1) subject to such conditions (if any) as it sees fit.".
A new subsection is being substituted because of the extent of the changes arising. The changes involve removing the references to arbitration in subsections (6) and (7). Provision is now being made for appeals against the decisions of building control authorities to be made to An Bord Pleanála. I think that is important.
Where is that section?
We are putting in a new section 7 as well. It also provides that a building control authority will not have to apply to itself for relaxations or dispensations in respect of work which the authority itself carries out. It also provides that the time within which applications for dispensations or relaxations must be decided upon can be prescribed by the Minister. The section provides the power for building control authorities to dispense with or relax particular provisions of building regulations in individual cases.
Given the fact that the requirements of the regulations are mandatory and the different types of building and building situations that must be catered for, it is considered desirable that there should be a means for permitting a relaxation or dispensations where compliance with such requirements could be considered unreasonable in a particular case having regard to the use to which the building might be put. For example, a multi-storeyed carpark, which is classified as a storage building, might not have to meet the full fire protection requirements of normal storage buildings as its fire load is generally low compared with other types of storage buildings. Its open sides enable heat to escape and facilitate fire fighting. Its means of escape are generally good for the small number of people who would frequent it at any one time.
A building control authority will have to deal with an application for dispensation or relaxation within a period to be specified by the Minister by regulations. If it makes no decision within that period a decision to grant the application will be regarded as having been given. Certain provisions of the regulations will not be capable of being dispensed with or relaxed and these provisions will be specified in the building regulations. It is intended at this stage that the provisions to be so specified will cover only Part A of the regulations which deals with the non-technical administrative parts—for example, such matters as interpretation, rules, exemptions, application of the regulations and the designation of purpose groups.
Can the Minister indicate why he saw fit to take out the two months which was specified in the original Bill and replace it with "prescribed time"? One of the greatest anti-bureaucratic measures ever enacted in this House was the mandatory two months requirement for planning permission.
It was part of the 1963 Act and it has worked exceptionally well. This is a weakness I am saddened by and I would oppose it. There is an option to prescribe the time, because of the pressures of staff shortages etc. We were supposed to have specific time limits on all planning appeals from An Bord Pleanála and we still have not got it despite the assurances given by myself when the Bill was going through. If we had put it into the Bill it would be fact.
We accept that.
It was a great improvement but it is drifting again as there is more activity.
There is a little more activity but it is my intention to press on until it is understood that appeals should not drag on.
We are proposing that it should be two months by law.
We will have to do it statutorily.