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Dáil Éireann debate -
Wednesday, 15 Feb 1989

Vol. 387 No. 2

Building Control Bill, 1984: Committee Stage (Resumed).

Is it in order for me to propose an adjournment of the House? I intend dealing with this Bill but I do not have my file with me.

I recall on one occasion when I was less versed in the ways of the world than I am now, being inclined, for my own good reasons, to accept such a request but I discovered afterwards that it would have been unwise for me. That lesson having been learned and with the Minister present — he has been waiting for some time — we must proceed with the business as ordered.

A Leas-Cheann Comhairle, none of the Opposition Deputies dealing with this Bill is present.

An té a bhíonn amuigh fuarann a chuid. I am sure Deputies should have been aware of it.

May I propose, with the permission of the House, a five-minute adjournment.

I could not agree to an adjournment. If the Deputy were advising me that she had available to her a copy of the Bill and would proceed to make her invaluable contribution during that period——

Then I suggest that we call for a quorum.

Notice taken that 20 Members were not present; House counted and 20 Members being present,

NEW SECTION.

Debate resumed on the following amendment:
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.".
—(Minister for the Environment.)

Deputy Keating had reported progress.

It might be helpful on this section if I made a brief comment on what we had discussed on the last occasion. When the Bill was last considered in Committee Deputies Keating and Quinn expressed concern about the provisions of section 4 (4) to the effect that the Minister could, by regulation, prescribe the period of time within which building control authorities would be required to give a decision on applications for relaxation of and dispensations from building regulations. It was suggested that there should be a two months time limit, as there is in the case of decisions on applications for planning permission.

I have considered the arguments advanced and I am disposed to concede the point. I give notice that I intend to bring forward amendments on Report Stage to insert the necessary provision in this section and in section 6 where it arises also. Therefore, wherever it arises, I will concede the point.

The House may be interested to know that I shall also bring forward amendments on Report Stage to provide for separate definitions of the terms "design" and "construction" instead of the composite definition at present contained in section 1, which was also a matter of some concern to us on the last occasion. The House will recall that Deputies Quinn and Keating both addressed that point as well. I am pleased to say that I can propose a suitable amendment on that matter also on Report Stage.

I appreciate the Minister's constructive response. I seek clarification on points which will probably become clearer when we see the text prepared for Report Stage. Do I take it that the procedure of permission by default, which prevails in respect of planning permissions, in principle will apply to applications under the building regulations?

That is in principle what we would like to see but the wording will be available on Report Stage.

Amendment agreed to.
Section 4 deleted.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

I rise to seek clarification. I merely want to have this point noted so that we can revert to it on Report Stage. It appears to me from representations I have received from a number of people, that in areas of urban development there are old buildings in areas designated for conservation requiring modification, which modification, if effected strictly in accordance with building regulations, would destroy their inherent value. In other words modern-day standards applied to old buildings to render them safe or to comply with certain construction standards — for example, the buildings across the road — might destroy the very quality that warranted their preservation in the first place.

Section 5 (1) reads:

Where the Minister considers that compliance with any requirement of building regulations would be unreasonable in relation to any specified class of building operation, works or material, the Minister may, as regards such compliance, by order dispense with or relax that requirement subject to such conditions as he sees fit and specifies in the order.

Is that to be interpreted as a framework section that would accommodate derogations in respect of areas designated for conservation? I want to establish that this is the section which provides the framework within which there can be derogations from building regulations — not the abandonment of standards but an alternative set of standards — in respect of old buildings warranting improvement but whose improvement under the ordinary building regulations would be counter-productive from a conservation point of view.

Yes, this is the appropriate section whose provisions would prevail in the type of circumstances the Deputy has outlined. In regard to particular types of buildings where the ordinary building regulations might not be appropriate, then these would be the provisions to be used. Perhaps the best I can do is to make that clear in issuing guidelines to local authorities. That would be the way to do it.

In other words, this section would provide the mechanism under which one could apply for, say, a waiver of the current by-laws. Am I right in thinking that this would constitute the legal door through which one would proceed to effect an adjustment?

To make an adjustment in circumstances attached to particular types of buildings where the norm would not apply. We could give a good indication of that in the guidelines attached to the regulations to be issued to local authorities later on.

When we come to Report Stage the Minister might avail himself of the opportunity to put on the record what is the policy or intent of his Department in regard to how they would envisage the provisions of section 5 being used.

Not by way of amendment?

By way of statement, so that it would be on the record of the House.

Question put and agreed to.
NEW SECTION.

I move amendment No. 12:

In page 8, before section 6, to insert the following new section:

"6. —(1) The Minister may make regulations (in this Act referred to as building control regulations) providing for matters of procedure, administration and control for the purposes of securing the implementation of, and compliance with, the requirements of building regulations and building control regulations may make such incidental, consequential or supplementary provisions as may appear to the Minister to be necessary or expedient.

(2) Without prejudice to the generality of subsection (1), building control regulations may make provision for all or any of the following matters—

(a) requiring the submission to building control authorities of certificates of compliance with requirements of building regulations (hereinafter referred to as ‘certificates of compliance') (subject to any dispensation or relaxation already granted under section 4, section 5 or section 7) prior to the commencement of, during, and after the completion of, the construction of any buildings, classes of buildings, works or classes of works, to which such building regulations apply;

(b) requiring, in respect of a building, or buildings, of a prescribed class or classes, the submission to a building control authority of an application for a certificate (hereinafter referred to as a ‘fire safety certificate') that a building, if constructed in accordance with the plans, documents and information, submitted, would, in the opinion of the building control authority, comply (subject to any dispensation or relaxation already granted under section 4, section 5 or section 7) with such provisions of building regulations as may be prescribed;

(c) requiring, in respect of the design or construction of any buildings or classes of buildings or of the carrying out of any works or classes of works to which building regulations apply the submission of an application to a building control authority for a certificate (hereinafter referred to as a ‘certificate of approval') of the building control authority that the buildings or works in the opinion of the building control authority, comply with the requirements of building regulations (subject to any dispensation or relaxation already granted under section 4, section 5 or section 7);

(d) prescribing the form and content of certificates of compliance, applications for fire safety certificates, fire safety certificates, applications for certificates of approval and certificates of approval;

(e) prescribing—

(i) the plans, documents and information to be submitted with certificates of compliance, applications for fire safety certificates and certificates of approval; and

(ii) the time within which such certificates and applications are to be submitted;

(f) the designation of the persons or the classes of persons by whom certificates of compliance may be given, and the classes of buildings or works in respect of which such certificates may be given;

(g) the granting by a building control authority of fire safety certificates and certificates of approval with or without conditions, or the refusal of such certificates, and the time within which such certificates shall be granted or refused, as the case may be;

(h) requiring a building control authority, whenever it refuses a fire safety certificate or a certificate of approval, to notify the applicant in writing of the reasons for such refusal;

(i) the registration of certificates of compliance, and of such information as may be prescribed in relation to applications for fire safety certificates, fire safety certificates, applications for certificates of approval and certificates of approval and the making available of such information to such persons as may be prescribed;

(j) prescribing the records to be kept, and the information to be provided to the Minister, by a building control authority;

(k) the charging of fees for—

(i) the registration of certificates of compliance,

(ii) the submission of applications for fire safety certificates or certificates of approval,

(iii) the provision of copies of certificates or other documents or extracts therefrom,

(iv) the carrying out of inspections and tests and the testing of samples taken pursuant to section 10 and

(v) for any other matter that the Minister considers appropriate;

(l) the combining in one document of any two or more of the following, namely, any application, notice, certificate or other document provided for in this Act, or in any regulations made thereunder, and any application, notice or other document provided for in the Local Government (Planning and Development) Acts, 1963 to 1983, or in any regulations made under those Acts;

(m) the excluding from all, or any of, the provisions regarding the submission of certificates of compliance or applications for fire safety certificates or applications for certificates of approval, of such persons, bodies or buildings as may be specified in the regulations;

(n) requiring the giving of notice to building control authorities of the erection of such buildings, or classes of buildings, or the carrying out of such works, or classes of works, as may be specified in the regulations.

(3) Building control regulations may make different provisions in relation to different buildings, or classes of buildings, in relation to buildings or classes of buildings situated in different areas, or in relation to different provisions of building regulations.

(4) Where a certificate of compliance or notice is submitted to a building control authority, the building control authority shall not be under a duty to any person to—

(a) ensure that the building or works to which the certificate or notice relates will, either during the course of the work or when completed, comply with the requirements of building regulations or be free from any defect,

(b) ensure that the certificate complies with the requirements of this Act or of regulations or orders made under this Act, or

(c) verify that the facts stated in the certificate are true and accurate.

(5) Where, within the period specified in building control regulations, a building control authority does not notify the applicant of the decision on an application for a fire safety certificate or a certificate of approval, a decision by the building control authority to grant the fire safety certificate or the certificate of approval, as the case may be, shall be regarded as having been made on the last day of the period so specified.

(6) Where an application for a dispensation from or relaxation of any requirement of building regulations is made pursuant to section 4, or where an appeal under section 7 has been made against a decision on such application, the building control authority may defer the making of a decision in relation to the granting or, as the case may be, the refusal of a fire safety certificate or certificate of approval, in respect of the building concerned until the decision on the application or, as the case may be, the appeal, has been made.".

This amendment involves the deletion of section 6. In deciding not to put forward a large number of drafting amendments separately I am mindful of the need to avoid distracting the House from the central issues arising. I shall be glad to deal with any queries Members may have on individual subsections as they arise.

The principal substantive change involved is that provision for appeals is now contained in the new section 7, the insertion of which I will move when the House has finished its deliberations on this section. Section 6 empowers the Minister to make building control regulations dealing with the procedural, administrative and control arrangements to be operated to secure compliance with the building regulations. This section gives power to the Minister to apply different systems of control to different kinds of buildings or to buildings in different areas if he so wishes. That is the kernel of the section. This power gives the Minister a flexibility to apply either an approval type system of control, involving the submission of plans to building control authorities for their approval, to the erection of individual buildings, a self certification system based upon certificates given by designated persons on their own responsibility or a combination of both systems.

Provision is also made for the submission to a building control authority of an application for a fire safety certificate in respect of a building of a prescribed class such as a high risk premises and places of public resort. This power is inserted in response to the recommendations of the Stardust Tribunal report that it would be undesirable for the fire related parts of the building regulations to be subject to a self-certification system of control.

As the Members will observe, there is a large number of amendments to the Minister's amendment, perhaps too numerous to advert to. The Deputies have the amendments before them.

What way is it proposed to proceed with these amendments?

Deputy De Rossa's amendment is the next one on the list, amendment No. a1 to amendment No. 12 which is the Minister's amendment. Amendment a1. is in the names of Deputies De Rossa, Mac Giolla, Sherlock and McCartan. I note that amendment No. 8 to amendment No. 12 is an alternative to amendment No. a1 and I am suggesting that we discuss the two amendments together.

I move amendment No. a1 to amendment No. 12:

In subsection (2), to delete paragraph (a).

So far as I am concerned this section is the key to the whole Bill before us in that this is the section that proposes to introduce certification by bodies other than the existing building control authorities. While I would be the first to accept that outside of Dublin and Cork the building control authorities do not operate in any substantial way, nevertheless it has been found that the way the building controls have been operated by Dublin city and county and indeed by Cork has proved to be extremely satisfactory in terms of the standards of buildings and the standards of compliance where regulations are concerned.

The proposal in amendment No. a1 is that paragraph (a) of the new section being proposed by the Minister be deleted. I am proposing this because it is under this paragraph that the question of certificates of compliance are being introduced. It is clear from the context of this Bill and indeed the debate surrounding it and the submissions which have been received from various interest groups that what is being proposed here is a procedure of self certification. I do not accept that as an adequate way of dealing with the development of urban areas in particular. It has not been found to be a satisfactory way of proceeding in other countries.

It is significant that the Minister has taken on board the recommendation of the Stardust Tribunal, that the fire regulations should not be subject to this form of certification. I know there are concerns among the professional bodies as regards where the ultimate liability would stand, given the failure to comply with a certificate or indeed if faults were to be found subsequent to a building being erected and a certificate issued. Who exactly would be responsible? If, for instance, a certifier was to die, go out of business or whatever, in what way would the person whose building was certified have recourse to the law or who would be ultimately responsible? It is for these reasons in general that I am proposing amendment No. a1 at this point.

This amendment seeks to ensure that building control regulations can only provide for approval type control systems based around the submission of plans and other documents to building control authorities who would have to issue an approval before work could commence. There is a number of serious drawbacks to the proposal. First, such a system would create inhibitory and costly delays in getting construction projects under way and secondly, it has the potential to seriously affect efficiency in the construction industry if introduced throughout the country. It would also involve the recruitment and training of a substantial number of staff in those local authorities not operating building by-laws. There are only seven local authorities operating these by-laws at present. Given the limitations on resources in local authorities, expenditure of the magnitude required would be quite unacceptable. The primary responsibility for the design and construction of buildings rests with the construction industry and the certification system envisaged in paragraph (a) recognises this. To exclude the possibility of being able to introduce a certification system, which would be the result of agreeing to this amendment, is not acceptable to me. For reasons involving practicality and principle I cannot accept the amendment.

As regards subsection (2) (a) this proposal has been suggested by some groups. It is in essence designed to delete the provision for the system of self certification in its entirety. Is that correct?

No. There are different types of certification as the Deputy will know. There is the approval system by local authorities, the self-certification system — a designer-builder operation — and there is the combination of both these systems. Certain types of buildings should be certified by the fire authorities. I think I mentioned on the last occasion that it was my intention to set up a building regulation advisory body and that is possible under section 13. I would expect that they would give advice on matters such as the types of certificates involved. That is the kind of advice I will be requesting them to provide to me.

I commend the Department for the clarity with which the amendment has been drafted relative to the original section 6. It is much clearer in its lay-out and content and a lot of detailed comments could be made about it. There is going to be a long debate on section 6 because the core of much of this legislation is embodied in that section. Subsection (2) (a) makes provision for self-certification; subsection (2) (b) refers to fire safety certificates; subsection (2) (c) refers to building certificates of approval coming from a building authority and subsection (2) (d) refers to the type of certificate. In essence, if I understand what Deputy De Rossa is saying, if we accept The Workers' Party amendment we are proposing to eliminate the power for any form of self-certification.

That is correct.

It is a complex Bill and I want the House to know exactly what we are about. Accepting such a proposal would remove the power for any form of self-certification.

I do not want to do that. There may very well be a combination of both in certain circumstances, but I would think the advisory group are the experts, and they are the people who are involved in this on a day to day basis and would be best suited to advise the Minister. I would rather Deputy De Rossa accept that as a way of getting the best from both sides, and eventually coming to a decision that would be proper and agreeable to all sides.

I do not accept that.

Progress reported; Committee to sit again.
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