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Dáil Éireann debate -
Wednesday, 29 Nov 1989

Vol. 393 No. 9

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

NEW SECTION.

There is a large number of amendments to the Minister's amendment No. 12 and I am suggesting that amendments Nos. 1 to 14, inclusive, to the Minister's amendment No. 12 should be discussed together.

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—

(i) the submission to building control authorities of certificates (in this Act referred to as `certificates of compliance') being certificates relating to compliance with the building regulations (subject to any relevant dispensation or relaxation already granted under section 4 or 5 or to any appeal under section 7 which has been allowed) 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,

(ii) 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 (in this Act 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 relevant dispensation or relaxation already granted under section 4 or 5 or to any appeal under section 7 which has been allowed) with such provisions of building regulations as may be prescribed, and

(iii) 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 to a building control authority of an application for a certificate (in this Act referred to as a `certificate of approval') of the building control authority that the building or works in the opinion of the building control authority, comply (subject to any relevant dispensation or relaxation already granted under section 4 or 5 or to any appeal under section 7 which has been allowed) with the requirements of building regulations;

(b) prescribing—

(i) 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,

(ii) the plans, documents and information to be submitted with certificates of compliance, applications for fire safety certificates, applications for certificates of approval and notices to which subsection (2) (k) relates, and

(iii) the time within which such certificates, applications and notices are to be submitted;

(c) 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;

(d) 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;

(e) 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;

(f) 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;

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

(h) 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 thereform,

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

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

(i) 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;

(j) the exclusion 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, or classes thereof as may be specified in the regulations;

(k) 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 a notice to which subsection (2) (k) relates, 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 a period of two months beginning on the date of an application for a fire safety certificate or a certificate of approval, or within such extended period as may at any time be agreed in writing between the applicant and the building control authority, the building control authority does not notify the applicant of the decision on the application, 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 or such extended period, as the case may be.

(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 of certificate of approval, in respect of the building concerned for a period not exceeding two months after the decision on the application or, as the case may be, the appeal, has been made, and subsection (5) shall be construed accordingly."

This amendment involves the substitution of section 6 in its entirety. In deciding not to put forward a large number of draft amendments separately, I am mindful of the need to avoid distracting the House from the central issues arising. I will be glad to deal with any questions Members may have on individual subsections.

The principal substantive change involved in the provision for appeals is now contained in the new section 7, the insertion of which I will move when the House has finished its deliberation on this section. Section 6 empowers the Minister to make building control regulations dealing with procedural, administrative and control arrangements to be operated to secure compliance with building regulations. There is power within this section for the Minister to apply different systerms of control to different kinds of building or to buildings in different areas if he so wishes. 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 for the erection of individual buildings, or a self certification system based on 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 high risk premises and places of public resort. This power is inserted in response to the recommendation of the Stardust Tribunal, that it would be undesirable for the fire-related parts of the building regulations to be subject to a self certification system of control.

Amendment agreed to.

I move amendment No. 1 to amendment No. 12:

In subsection (2), to delete subparagraph (a) (i).

I am aware, from reading the report of the debate on section 6 prior to the dissolution of the Dáil, that this amendment received quite a detailed airing at that stage. It produced quite an interesting debate which ranged in its subject matter from the integrity and so on of professionals to deep considerations of ideology. What I would like to do is to get back to the basics of what this Bill is all about. This is a Bill which provides for building regulations and in my view, it is long overdue. It is essentially consumer legislation. If it is to be meaningful it would have to give some degree of protection to the home buyer and to the owners and users of public buildings and ensure that the great majority of the public who use buildings in one way or another are protected against any kind of risk, bad design, bad workmanship, bad materials and so on.

Section 6 is the core of the Bill. This is the section that provides for the kind of building control mechanism that is going to be put in place. Essentially this is the section that answers the question as to who is going to say that a building has met the proper standards and has complied with the regulations that are set down under the other sections of the Bill. In theory, this section gives the Minister a range of options. It gives him the option of self certification, of certification of fire safety, of local authority certification or of some combination of all of those. In another section of the Bill there is provision for a building regulations advisory body. I noticed from the debate prior to the dissolution of the Dáil that the general emphasis seemed to be that this building regulations advisory body would advise the Minister and he would decide what kind of certification would be appropriate at a particular time or in a particular area.

That is the theory of the Bill but it is quite clear from the debate that took place on the Bill and from statements that have been made over a long period that what the Bill intends to do is to provide for self certification. That is what this Bill is all about and that is what will emerge in practice if this section, which I am seeking to have deleted, remains in place. Furthermore, it is intended that this system would apply universally throughout the country. The fear has been expressed, and I repeat it, that this could result in the system of building control which exists in a number of local authorities being done away with and being replaced by a system of self certification. Therefore, the degree of building control, limited and all as it is, which exists in some local authority areas at present, including the largest areas, could be considerably watered down as a result of the passage of this section of the Bill. Instead of the Bill actually tightening building control and giving better protection to house buyers and to the users of buildings, it could actually do the reverse in large areas of the country.

The whole debate on this Bill is about the question of self certification. What is wrong with self certification? In the course of the debate that took place before the dissolution of the Dáil, a lot of suggestions and arguments were made which, quite honestly, do not stand up. Nobody is trying to impugn the integrity of an entire profession. Nobody is—and certainly I am not — trying to suggest that the majority of architects or of any profession are going to willy nilly sign certificates of compliance that are inaccurate or that do not stand up.

There is a principle here. You do not ask somebody who designs a building and is responsible ultimately for the construction of that building to certify that the building complies with the regulations. That is not impugning their professional integrity just as, for example, the Department of Social Welfare presumably are not impugning the professional integrity of doctors by insisting that qualification for disability benefit requires certification by doctors nominated by the Department of Social Welfare. It does not impugn the professional integrity of teachers, for example, that they are not allowed to correct the leaving certificate papers of their own pupils. It should not follow that the certificates of compliance in this case should be submitted by the people who are ultimately responsible for the building itself. Self certification gives rise to problems and that has to be recognised at this stage. There is no point in saying that it might not be self certification in some cases; that it might be certification by the local authority. It is quite clear from what has been said previously in the debate on this Bill that the intention is self certification.

Considerable emphasis has been placed on the whole question of independence. Independent authorities are now the order of the day. There seems to be general consensus in political circles that we need an independent environmental protection agency. Why do we not have self certification with regard to environmental protection? Why do we not ask various industries, farmers or certain professionals who might be engaged by them, to certify that they are complying with the regulations? We insist, and correctly so, that there must be independent assessment and control.

The third argument I would put forward is that what is proposed in the Bill is considerably out of line with the practice in other EC countries. We have to anticipate the possible harmonisation of building control throughout the Community. Already in seven of the EC member countries, building control is exercised by the local authorities. In the two countries where self certification applies, it applies in situations where there are very strict controls regarding insurance and so on. What is being proposed here—a system of self certification — is very much out of line with what has been the practice in the rest of the European Community. What I am proposing here is that the provision for self certification be deleted from this Bill.

I would like to compliment Deputy Gilmore on having grasped the essence of the tortuous debate we had the last time we spoke in the House on this Bill and for admonishing us to try to get back to the basics of what the Bill is about. It is a complex Bill and we all know that. I think all of us would agree that if we were to write the Bill again in its entirety perhaps it could be improved. This is a Ford motor car that was made either on a Monday or a Friday but it is the only motor car that is in front of us and we have to deal with it.

The net point that Deputy Gilmore has raised in relation to section 6 —it is, as he has rightly said, the core of the Bill—is whether any Minister of the day should have the power to provide for some form of self certification. The essence of the amendment in the name of Deputy Gilmore is that no Minister at any time in the future should have the power to provide for self certification. Notwithstanding the merits, the demerits and all the other concerns that would make up the philosophy of whether there should or should not be self certification, to remove the possibility —in terms of law, a Minister of the day would have to provide such a provision with or without safeguards — seems at this point to be inadvisable. I will not be supporting this amendment because of its fundamental nature as indicated by Deputy Gilmore —indeed he has been consistent in this respect. Some form of self certification should be an option at some point for some Minister for the Environment if all the necessary components and safegurads which are required are put in place. This is an enabling provision. The effect of the amendment of The Workers' Party spokesman on the Environment would be to, inter alia, remove absolutely the power of any form of self certification. The amendment is too extreme and I will be opposing it.

I want to reply to my colleague, Deputy Quinn. If this section simply proposed giving the Minister for the Environment the power to have self certification, in certain limited circumstances, exercised from time to time or whatever, and introduced a degree of flexibility into the system, I would not be too concerned about it. However, we cannot look at what is in the Bill outside of the context of what has been said about it during the entire debate and what the intention of it clearly is.

It is quite clear that the intention in this section of the Bill is to introduce a system of self certification which will be the primary instrument used to give effect to building control. It is a little misleading to suggest that the provision for self certification is some kind of an adjunct to the general provisions of the Bill and which can be exercised from time to time. It has been made crystal clear — this is my reading of the debate which took place before the adjournment of the Dáil — that the central method by which it is intended building control will be exercised under this Bill is through the system of self certification. In other words, a competent professional or whoever has designed a house, is responsible for the building of it and so on, would also be the person who would be able to say "this building is fine". That principle is not acceptable in commercial life. If it was accepted in commercial life, why do building societies, when they are approving a loan for somebody buying a house, decide they will not automatically accept the word of the professional representing the people selling the house? They send out their own surveyors to inspect the house and insist that everything is correctly monitored, that standards are met, that there will be value for money and so on.

The principle being enshrined in this section is very dangerous. It will expose people who are buying homes to buying products which are sub-standard against which they will have no comeback. Under a later section of this Bill once a local authority take in a certificate of compliance and file it away one cannot take any action against them. These people will have no worth-while come-back if a certificate of compliance does not properly ensure that a building meets the required standards.

We are talking about very serious matters; we are talking about buildings and structures which should last for hundreds of years. It is only right that the regulations under which those buildings are constructed should be properly monitored by an outside body and that the people who say "yes, this building is fine and meets the regulations which have been laid down" should be removed and should not have any vested interest or professional interest in the building. I have no doubt that the professionals will, of course, comply with their professional ethics but we know very well that there are people in every profession who cut corners. We know very well also that in a highly competitive business such as the construction industry the temptation is always there to go for the lowest common denominator. When one professional goes for the lowest common denominator it brings down the whole tone of the regulations.

The certificate stating that a building meets the requirements of the regulations should be issued by the local authority. This is the system being used in the majority of member states of the European Community. If at some future time there proves to be some difficulties with the system it will be open to any Minister to bring in an amendment to correct the problem. We will be building up trouble if we base the entire building control system on the principle of "I am designing the building and putting it up and if I say the regulations are right then they are right". That is an incorrect way to proceed in regard to building control. Too many people in housing estates bought their homes with their life's savings, and very often their future earnings, only to find out later that something was seriously wrong with the premises. There are many examples of public buildings and buildings of one kind or another which have shown up defects after a number of years. No doubt those buildings were designed and examined by professionals——

In some cases without by-law approval.

I do not deny it. I am not suggesting that we will ever get a 100 per cent guarantee that the regulations will be complied with but we have to strive towards this aim so far as possible. We are far less likely to get this guarantee if we rely on the people who have an immediate professional and sometimes vested interest in the building being constructed.

One of the difficulties in this area is that it is very easy to articulate the problem but there is a number of possible solutions. Deputy Quinn and Deputy Gilmore in their exchange illustrated the nature of the problem. The buildings we have had problems with in the past possibly did not have the type of building control we would like to see in place. It is easy to criticise this Bill as not doing a variety of things some of us would like to see done and to produce some other methodology whereby things might be approached but the reality is that we are talking about buildings where controls, for want of a better word, were lacking in both the private and the public sector, where there were by-law approvals, the planning conditions inserted were complied with and the professionals in both public and private authorities were involved, but which at the end of the day gave rise to problems. There is a variety of buildings which have given rise to difficulties, some of which the State took over on a long term basis from private developers and which we could refer to here.

The difficulty arises in providing the necessary controls to ensure a particular standard is maintained and the various necessary steps taken with regard to constructing the building and then to ensure that the job is being done properly. There is an interaction there between the public and private sectors.

I am concerned with self-certification in the context of it resulting in local authorities, who currently exercise a control, not being able to properly monitor what is happening and not being able to exercise the necessary control. I am concerned that there is a possibility that this could end up being legislation which gives the appearance of providing a greater protection to the general public and the consumer without doing so. Amendments Nos. 5 and 12 are being discussed together and in that regard the approach suggested by Deputy Gilmore is correct. I do not wish to go into the detail of those amendments now but if we were tied to taking amendments Nos. 1 to 14 in a conglomerate fashion we would descend into linguistic chaos. It would be better to deal with each one and tease it out. However, where there is an interaction it is relevant to point that out.

Amendment No. 5 is designed to ensure that the individuals involved in the designing and construction of the building are not the people who do the necessary certification. The Minister may not want to accept the exact phraseology of that amendment but he should bear in mind that the idea is to ensure that those involved in the construction or design of a building should not carry out the certification. If the Minister was willing to take on board that type of approach we would get over the problem referred to by Deputy Gilmore in the context of a Minister putting into operation the power that the new section 6 would give with regard to self-certification. If we take this a stage further and take amendment No. 12 which may not necessarily be greeted with enthusiam by local authorities, we would be giving the consumer, if that is the person we are concerned about, a great deal more protection than is envisaged in the Bill.

The Bill effectively excludes the local authority from being under any statutory duty to ensure that a building has been erected in the way certified and my amendment No. 12 would have the opposite effect and would result in subsection (4) reading as follows:

... the building control authority shall 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 of compliance complies with the requirements of this Act ...

I have reservations about the way that section is constructed. If one takes self-certification as being certification by the designer or the person involved in the construction of the building, and one then takes it that thereafter the local authority are under no particular duty, I am not sure where the real protection is for the consumer. If the building control sections in local authorities are to operate in a way that is meaningful to the person who purchases the building — we will come to the problem of domestic dwellings later — or for a person who is using a building or, indeed, for a person who might walk below a building that is likely to fall into the street, it would seem to me that there is not a lot of merit in subsection (4) which appears to say that the building control authority is not under a duty to do a variety of things which to my mind it should be under a duty to do. Admittedly, that would put an onerous responsibility on the local authority but it would ensure that a very real protection exists. It would remove many of the worries people have in the context of self-certification, because it clearly ceases to be a self-certification. The local authority have a specific duty to maintain an ongoing monitoring role.

There are different ways of dealing with the issue Deputy Gilmore has raised and the way Fine Gael are proposing to deal with it is in the context of amendments Nos. 5 and 12. There are other amendments that interact with this but amendments Nos. 5 and 12 are central to this discussion. I would be interested to hear the Minister's response to amendment No. 1, in the name of Deputy Gilmore, and Nos. 5 and 12 in my name.

I am pleased that Deputies have expressed their pleasure that the Bill is before the House again. I hope we can dispose of it on this occasion. That is my aim and I seek the co-operation of the Deputies to achieve it. It might be useful at this time if I gave an overview of this section seeing that it is some time since we spoke about the control and enforcement procedures in the Bill. When the Bill was last discussed in Committee we had a lively debate in relation to different options for control systems proposed in section 6. From an examination of the transcript of that debate it appears that there is some confusion in relation to this section, and related matters, provided for in the Bill. I should like to explain the thinking underlying the control mechanisms that are proposed.

The first point I wish to emphasise is that section 6 can only be understood in the context of the Bill as a whole. I can best illustrate this in the following way. Let us assume that section 6 was deleted from the Bill and ask ourselves what would be left to promote observance of the building regulations. Firstly, there is the fact that contravention of the building regulations is a criminal offence and, in addition, the Bill sets up building control authorities with powers of inspection, enforcement and prosecution under sections 7, 10 and 15.

Most of the legislative codes for which I am responsible operate perfectly well within a similar legislative framework and without the type of additional control mechanisms envisaged in section 6. It is clear, therefore, that the control powers in this section are additional to, and not a prerequisite for, substantial control and enforcement powers in the other sections to which I have just referred.

Section 6 is the enabling power for making building control regulations. I readily acknowledge that the range of options proposed is wide but, as Deputy Quinn has pointed out, this framework legislation will probably have to last for some considerable time. I pointed that out on the last occasion we debated the Bill and that was accepted by all. It would be unfortunate if the Minister of the day was to be unduly confined in relation to the type of control system that might be appropriate to the building industry at different times in the future.

Again, I should like to bring home the point that whatever the building regulations may contain, any approval of certification procedures will be in addition to the powers of inspection, enforcement and prosecution given to building control authorities by other sections of the Bill.

Essentially, the three options are proposed in paragraphs 6 (2), (a), (i), (ii) and (iii). Provision for self-certification is made in paragraph (a) (i) and this system centres around a large measure of self-regulation by the industry itself. Third party certification, involving certification of the design and construction of the building by an independent or appropriately qualified person is also possible under this provision. Third party certification is an independent form of self-regulation of the industry. The other main option is set out in paragraph (a) (iii) and is based on an interventionist-type role for the building control authority in relation to the design or the construction of the building, or both.

This proposal is broadly similar to the system of control applicable in those local authorities which operate building by-laws. It would involve the submission of plans and other information to the building control authority for approval and the approval of this authority could also be required in respect of the completed building. Let me say here that I do not envisage an approval system by the building control authority for the construction of buildings. I find it difficult to visualise a situation where such a system would ever be required for all buildings but a situation could arise at some future stage where an approval system might be desirable for the construction of some class of building or some new building techniques.

The last control mechanism is the fire safety certificate procedure provided for in subparagraph (a) (ii). This would involve the submission of an application to the control authority for approval on the fine aspects of the design of certain buildings before commencement of the work. The insertion of this provision arises directly from the recommendation of the Stardust Tribunal.

The Bill also provides for the combination of the above control systems in relation to different buildings in different areas. That said, Deputy Gilmore suggested it would be a mistake to have the people who design and build buildings certify that they comply with the regulations. Of course, he misses the point. These are exactly the people who should carry the responsibility for certifying that the job has been done correctly. To have somebody else do the certifying would be to remove from the designer and the builder the responsibility for the building which has been built. I welcome Deputy Quinn's support for the concept of self-certification which he quite rightly pointed out is just one of the options available to the Minister under the legislation.

Deputy Gilmore also placed much emphasis on his concern about sub-standard buildings. I think that this concern will be allayed by giving building control authorities the enforcement powers under sections 7 to 10 to take action in the case of buildings not being built in conformity with the building regulations. There was much discussion on the last occasion on the possibility that builders will cut corners. I hope we will not get into that line of argument on this occasion. I do not want to repeat myself, but as far as I am concerned the vast majority of builders do the job in accordance with specifications and do it well. They will only be able to continue it business as long as they have good quality work as their trade mark. I do not believe that anything in this Bill will expose home buyers to the possibility of buying a sub-standard building.

In regard to housing, I would like to point out to Deputy Gilmore that there are already controls in place on most houses by way of the structural guaranted scheme. There are certain controls it place so far as the payment of house grants is concerned. Department inspec tors carry out inspections before grants are paid. Therefore, there are sufficient safeguards in place in that area.

Deputy Gilmore suggested, by implication, that all legislative codes are based on an interventionist type role for public authorities. This is not so. With the exception of the planning code, action of this kind is not required under most other local government legislation, such as the Road Traffic Acts. No one is obliged to have their new car examined by a local authority before they are allowed to drive it on the road for the first time. Nobody is suggesting that should be the case. fail to see therefore why local authorities should, as Deputy Gilmore suggests have to approve the design of all buildings before they are constructed. This is no necessary under the present system which has not been found to be wanting in the past.

Deputy Shatter really referred to his own amendment, amendment No. 5, it so far as third party certification is concerned. That was his principal point. It seems that the effect of that amendment would be to replace the concept of self-certification with what I would call a third party certification system. In other words, a person would not be entitled to certify compliance with building regulations if he was personally involved in the design or construction of the building in question. I would point out that the amended section 6 would enable the introduction of either a self-certification or a third party certification system, or even a combination of both.

I would be reluctant to embrace the concept of third party certification, particularly if this would involve the exclusion of self-certification. There are a number of reasons for this. First, third party certification would impose a layer of cost similar to that pertaining to the local authority approval system and the costs of third party certification would fall directly upon the construction industry, while a local authority approval system would be paid for either by way of general taxation charge or by way of a system of fees which, again, would be borne by the industry itself. The central point is that costs of a similar order would arise under both systems. The extent to which one system would be less expensive than the other would presumably depend only on the relative efficiency with which they were administered. Second, the delays in starting up construction projects, which would be obviated by self-certification, would to a greater or lesser extent arise under the third party oriented system.

Finally, even if I were to accept that third party certification ought to be introduced in respect of certain complex or sensitive buildings, it is obvious that the less complex type of building or extension could quite adequately be catered for within a self-certification system. I am not therefore prepared to agree to the amendment which would have the effect of precluding a self-certification system. It would be better to refer the whole question of building regulations to the advisory body referred to by Deputy Gilmore. For that reason we should proceed in the way outlined in the Bill.

Would the Minister respond to amendment No. 12, to which I referred, when he has a moment to do so? Let me raise one question with him with regard to buildings. In referring to the new section 6, in particular subsection (2) (a) (ii) which deals with the position in relation to fire safety certificates in respect of a building or buildings of a prescribed class or classes and so on, in the context of grants, the Minister said that the local authorities check out the domestic houses concerned. I am not sure how comprehensive that checking out is; in most instances it is merely a question of checking whether the house has been built as opposed to checking out the type of thing referred to in this Bill. Perhaps the Minister would clarify the intention with regard to domestic dwellings, that is domestic dwellings in private ownership and domestic houses built by local authorities. In a sense here we have a conundrum of the local authority possibly checking the local authority.

Two incidents which occurred within the last ten days give rise to immediate concern. It was only on Monday week last that a three storey Dublin corporation house went on fire in the Summerhill district of Dublin, and two young children had a very tragic death, trapped on the third floor of a corporation house without anyone being able to gain access to them. Because of the way that house was built the third floor was a fire trap. I visited these houses and I have no doubt that if there was a fire on the second floor of any of the houses in Summerhill, cutting off access to the third floor, once the stairs were affected by fire, no one, neither an adult nor child, would escape. There is a problem for people who are trying to provide help gaining access to those on the third floor, and there is also the problem that those who find themselves trapped would be unable to get out.

In the context of this Bill what is being done to ensure that that type of problem will not arise in future local authority buildings? What role will the fire authority who are here doubling up with the local authority, have? This Bill will deal with building control in the sense of buildings that are built in the future, though there are certain matters of relevance to older buildings. From what I have seen of Summerhill and the rather crass reaction of Dublin Corporation which was to announce that there is nothing wrong with those houses, there is a very real problem with them. As a result of that fire, all local authorities should be asked to review the safety provisions with regard to possible fires in all three storey local authority dwellings and Dublin Corporation should be asked to do so as a matter of urgency. If there is another fire in another three storey local authority dwelling which results in tragic deaths, everyone will ask why Members of this House did nothing to get the local authorities to put fire safety provisions in place.

Dealing with the fire authority in the context of whatever regulations the Minister envisages here, what will be done to ensure that local authority houses will be built in such a way that these people will be able to escape a fire; what will be done to ensure that the materials used in the building of these houses will prevent fire spreading rapidly with a view to preventing loss of life? Last night in my constituency there was another tragedy resulting in the loss of lives of young children in a fire in a private dwelling in Marley Grove, Rathfarnham. I am concerned at the speed with which fire enveloped that building. What controls will this legislation put in place in the context of private dwellings? There is a rumour that what is being done in this legislation will not affect the ordinary domestic dwelling. I am raising that simply in the context of the Minister making reference to section 6(2)(a)(ii) in which buildings of a prescribed class or classes are included. This obviously means other buildings will be excluded. Perhaps the Minister could respond to amendment No. 12.

Before the Minister responds to the broader points and the points of concern raised by Deputy Shatter, from the point of view of procedure, in view of the Minister's response to Deputy Gilmore's specific first amendment in relation to the principle of self certification, it might be helpful if Deputy Gilmore could respond and we might then try to dispose of that amendment and proceed to see if we can improve the rest of section 6 to which there is a large number of amendments. We can then get on to some of the other sections, including section 10 which deals with some of the concerns we all have.

I might just explain a procedural matter. Having agreed to take all the amendments together for discussion——

We have agreed to discuss them all together, that is, all the amendments pertaining to section 6, but their disposal is at the discretion of the House.

——when contributions have been completed we then proceed to put a question on each. We do not discuss the whole lot of amendments, then put a question and then proceed to the next one.

Since Deputy Gilmore's amendment is a very fundamental one proposing to eliminate the whole section, it might facilitate structured debate in the light of what Deputy Shatter asked for at the outset. If we were to come to a position on that and take a vote on it, we could then proceed to the rest of the amendments. I am trying to be helpful.

The House is at liberty to change its mind. If there is a new proposal now that we exclude from what has already been agreed amendment No. 1 in the name of Deputy Gilmore, get that out of the way and then proceed to discuss all the subsequent amendments, and not put any question until all contributions have been made, that seems to be a reasonable request. We can proceed to do that now when Deputy Gilmore has concluded.

I agree with that procedure because some of my subsequent amendments anticipate what might happen to amendment No. 1. The amendment is about a central principle contained in this Bill. I do not propose to repeat what has already been said, but if we go back to the starting point and take this from the perspective of somebody buying a house, it is not clear that domestic dwellings will be covered under this Bill. That is something we can come to later but if domestic dwellings are covered, a person buys a house and a few years later finds something seriously wrong with the drainage system or a major structural fault, or if there is a fire, what is his comeback? What if he finds that the building did not comply with the building regulations?

The Minister says there will be a certificate of compliance lodged by the appropriate person with the local authority and that we should not absolve the person who lodged the certificate from responsibility. Suppose the person in question looks for the person who lodged the certificate and is gone, since there is no provision in the Bill for insurance, he does not have any comeback in that sense. Under section 6 (4) he can go to the local authority because since the local authority lodged the certificate of compliance they must have some responsibility for it, and they can point out that under section 6 (4) of the Bill the local authority shall not be under a duty to any person for any of the matters covered in it.

The Minister says there is the structural guarantee scheme. I have yet to meet a house buyer who has had a satisfactory experience with that scheme but I have met several people who have found it very difficult to have their problems redressed under it because there are considerable delays; so I do not think the structural guarantee scheme is going to be a great deal of comfort to somebody in that situation.

The Minister has just admitted that the system of approval by local authorities will apply only in very limited circumstances. He goes on to say that the local authorities will have responsibilities in the areas of prosecution and enforcement which seems to contradict what had been said at an earlier stage, that the whole business of building control regulations would involve enormous costs for the local authorities and would be very unwieldy requiring a large number of staff and many inspections. One is going to have that if one is to give effect to the Bill from the point of view of prosecution and enforcement.

In fact if one looks at the overall situation, the local authorities that operate the existing building control by-laws actually cover 40 per cent of all construction in the country. One is not actually expanding the role of the local authorities to a great degree in that sense.

In relation to the idea of third party certification, even though the option will remain in the Bill, the Minister seems to effectively rule it out because of the additional costs he talked about. We are back to the idea of self certification; he who designs and builds the building says that the building is okay. It is a peculiar adaptation, some kind of Flynn variation of Confucian law; but it will give very little comfort to people who are buying houses.

Is the Deputy referring to the Minister?

I will excuse him on this occasion.

I beg your pardon, a Leas-Cheann Comhairle.

It is customary in the House, Deputy, that when referring to a Minister you use his title.

I was attempting, a Leas-Cheann Comhairle, to introduce a little light relief to the proceedings but, obviously, it fell somewhat flat. I apologise to the Minister for addressing him in the form in which I did.

The Minister does not take offence as easily as that.

He does not look the remotest bit like Confucius.

I was in the land of Confucius and I did not see many there living like you either.

I believe the Minister was there very recently.

(Interruptions.)

I must say, Deputy Gilmore, that the Chair, no more than the Deputy, welcomes any opportunity we might have for light relief, realising all the time that there are sensitivities that the Chair might not have but which he must guard in case other people do not share his view. Deputy Gilmore to proceed without further interruption.

That brings me to Deputy Shatter's amendment. This would have a rather bizarre effect. On the one hand he seems to be saying that he cannot support my amendment to remove self certification but the effect of his other amendment is in fact to shift the responsibility onto the local authority. The effect of this amendment would make the local authorities responsible for the certificates of compliance which are submitted to them. One would then have a situation where the certificates of compliance were supported on a self certification basis but the local authority would have to carry the can for the consequences. It seems to me that if the local authority are going to have to carry the can they will have to carry out inspections and so on to make sure they are not exposing themselves to any liability or risk. In those circumstances it would be logical for the local authority to be the body giving the approval. This amendment is central to the whole Bill.

Question "That the words proposed be deleted stand", put.
The Committee divided: Tá, 70; Níl, 52.

  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Briscoe, Ben.
  • Browne, John (Wexford).
  • Burke, Raphael P.
  • Calleary, Seán.
  • Callely, Ivor.
  • Clohessy, Peadar.
  • Collins, Gerard.
  • Connolly, Ger.
  • Coughlan, Mary Theresa.
  • Cowen, Brian.
  • Cullimore, Séamus.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Ellis, John.
  • Fahey, Frank.
  • Fitzgerald, Liam Joseph.
  • Fitzpatrick, Dermot.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Power, Seán.
  • Quill, Máirín.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Stafford, John.
  • Geoghegan-Quinn, Máire.
  • Hillery, Brian.
  • Hilliard, Colm.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kelly, Laurence.
  • Kenneally, Brendan.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Lyons, Denis.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, Jim.
  • McEllistrim, Tom.
  • Morley, P.J.
  • Nolan, M.J.
  • Noonan, Michael J.
  • (Limerick West).
  • O'Connell, John.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Toole, Martin Joe.
  • Tunney, Jim.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilson, John P.
  • Woods, Michael.
  • Wyse, Pearse.

Níl

  • Ahearn, Therese.
  • Allen, Bernard.
  • Barnes, Monica.
  • Barrett, Seán.
  • Belton, Louis J.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Bruton, John.
  • Byrne, Eric.
  • Carey, Donal.
  • Connaughton, Paul.
  • Connor, John.
  • Cosgrave, Michael Joe.
  • Cotter, Bill.
  • Creed, Michael.
  • Crowley, Frank.
  • Currie, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Doyle, Joe.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Enright, Thomas W.
  • Farrelly, John V.
  • Finnucane, Michael.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Foxe, Tom.
  • Gilmore, Eamon.
  • Gregory, Tony.
  • Harte, Paddy.
  • Hogan, Philip.
  • Kemmy, Jim.
  • Lowry, Michael.
  • McCartan, Pat.
  • McCormack, Pádraic.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mac Giolla, Tomás.
  • McGrath, Paul.
  • Mitchell, Jim.
  • Noonan, Michael.
  • (Limerick East).
  • O'Keeffe, Jim.
  • Owen, Nora.
  • Rabbitte, Pat.
  • Reynolds, Gerry.
  • Shatter, Alan.
  • Sheehan, Patrick J.
  • Sherlock, Joe.
  • Taylor-Quinn, Madeleine
  • Timmins, Godfrey.
  • Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies McCartan and Sherlock.
Question declared carried.
Amendment declared lost.

I have been looking at what is before us and I am reminded — it is often unwise to depart from normal procedure — that, perhaps, the House would agree that the most expeditious way of dealing with the business before us would be to look at the Minister's amendment and proceed down through it, paragraph by paragraph, applying whichever amendment is appropriate en route and that at the end of those discussions on the amendments there would be a discussion on the new section. Would it lead to a more workmanlike approach for the better results of the business on hand?

I think it might be easier to work through the amendments Nos. 1 to 14, inclusive, so that we may progress a little quicker than we have done since we opened the discussion and then take the Minister's amendment together with any amendment that is made to it for an overall discussion. That might be the best way to do it. It may not be necessary to dissect every sub-division of the Minister's proposed new section 6. Obviously we will discuss some parts of it as we go through the various amendments. I think that would be a speedier way of doing it, in other words, we would come to amendments 1 to 14 and we would then know if there are any particular portions of those that the Minister is willing to incorporate into his amendment. In a sense we would know what the final version of the new section 6 is going to be. That might be an easier way of dealing with it. Subject to what my colleagues and the Minister say I have no particular axe to grind in this matter but I think that might be an easier way to proceed.

I gather that in our earlier discussions we had a situation where we moved from amendment No. 1 into subsequent amendments and discussed a matter that, perhaps, was not relevant to it. When I looked at the size of the new section, bearing in mind that we have so many amendments to it, I wondered if we should consider approaching it the other way rather than the traditional way but, again, the Chair will be guided by the wisdom of the House.

I move amendment No. 2 to amendment No. 12:

In the seventh and eighth lines of subsection (2) (a) (iii), to delete "the building or works in the opinion of the building control authority, comply" and substitute "in the opinion of the building control authority the design or construction of the buildings or works comply".

In moving this amendment I would like to note that, as far as the Labour Party are concerned, we have no problem with the proposed amended section 6 (2) (a) (ii) because my amendment pertains to paragraph (iii) of subsection (2) (a). In essence that amendment is an effort to separate the principle of the design and the construction of the buildings. The House will recall that when we debated this issue earlier we were trying to make a clear distinction between those people responsible for the design of a building and those people responsible for the construction and provide a clear legislative understanding and definition whereby accountability and responsibility in relation to undertakings given by a team of designers, or one designer, for compliance with the building regulations, in respect of the design of a building, would be compartmentalised and certified accordingly, or evaluated by the building control authority as being in accordance with the building regulations. In other words, would a package of drawings submitted to the building control section of a local authority, if examined by that local authority, stand up to scrutiny and be certified as complying with the design standards as set down in the building regulations and that the liability of the design team could be clearly identified and accounted for?

In the event of the package of design drawings, structural, mechanical and electrical, not satisfying the design requirements of the building regulations, the building authority or any other third party investigating the documentation, could clearly say that the building was not designed in accordance with the regulations. The intention is to separate that from how it may subsequently be constructed. While the design team may design strictly in accordance with the building regulations, as they currently stand, or as they may be altered from time to time, there is no guarantee that the same design team that designed the package of drawings will necessarily be involved in the construction, that all the same team will be involved in the construction or, indeed, that any of them will be involved in the construction.

Notwithstanding whether they will be involved, it is simply not possible or feasible for somebody to certify that work done by other people to drawings which they had prepared has been done strictly in accordance with the way in which they were designed. That is one of the major concerns of the design profession. The converse must be true also, that the construction industry are prepared to take on responsibility for that over which they have control. To take on responsibility for work that will be carried out by somebody else, and over whom one would not have direct control, is to add an impossible burden. The essence behind the language contained in that amendment which separates the words "design" and "construction" from the building is to give effect to that concern. I recommend it to the House.

I undertook to introduce a Report Stage amendment to split the definition of "design and construction" in section 1 and that will be honoured. Separate definitions of "design and construction" will be introduced on Report Stage.

I wish to thank the Minister. Do I take it that he will give effect, by way of a specific amendment to this section on Report Stage, or will the interpretative amendment in section 1 be sufficient to cover all subsequent sections?

I consider that it may not be and, for that reason, I am prepared to accept the Deputy's amendment to make it crystal clear.

Amendment agreed to.

Amendment No. 3 is not now relevant.

Amendment No. 3 to amendment No. 12, not moved.

I move amendment No. 4 to amendment No. 12:

In the first line of subsection (2) (c), to delete "the persons or".

This amendment is in my name and in that of Deputy Shatter. It is to remove the possibility that the Minister could name individuals as being eligible for certification rather than categories or qualifications. The architectural profession think it unnecessary and would like to know why it is included. It is not a major matter but the Minister may have a kind of "grandfather" clause in the back of his mind in relation to certification. The idea of naming persons, who would subsequently be entitled to certify, seems to be unnecessary and should be deleted.

Deputy Quinn has given the reason for this amendment on which we are both agreed and I do not want to waste the time of the House by repeating what he said. I should like the Minister to indicate the classes of persons he has in mind as being able to certify in that there is a variety of different organisations with practical experience of building design and construction, such as the Royal Institute of Architects of Ireland and others. However, some of them seem on occasion to have a vested interest in excluding other organisations involving people with similar skills and expertise such as the Irish Architects' Society. Will the Minister clarify the classes of persons he has in mind as I am anxious to ensure that people who are fully and properly qualified to operate this legislation in the certification area are not subsequently excluded following regulations made as to who people who can certify should be? They could find themselves excluded because of the power exercised by any particular lobby group of professionals in this area. Perhaps the Minister will clarify that?

A "person" can be a body corporate under the interpretation Acts and we should bear that in mind in the reference here to "persons". To confine approved certifiers to classes of persons, which would be the effect of omitting "persons" as proposed, would unduly restrict the Minister in designating certifiers who would be approved for the purpose of signing certificates of compliance with the building regulations. In effect, that is looking for a closed shop and it would mean that before a person could be designated as an approved certifier he or she would have to belong to some particular class such as architects or engineers or be a member of one of the other professional building organisations. This would not only be unacceptable but impractical and restrictive, particularly in a broad enabling Bill. Deputies should try to remember that we are not talking about something confined to high rise buildings or big conurbations, we are also talking about rural areas and the whole spectrum of building development.

If the word "persons" is omitted, I could be in the ridiculous situation of making up a class of persons to cover one or two people whom I consider are fully competent to sign certificates of compliance. At this point let me assure the House that it is far from my intention to designate persons as certifiers if they do not have the required competence. I will, however, ask the Building Regulations Advisory Body to advise me as to the persons or classes of persons who would, in their opinion, be competent to sign certificates of compliance in respect of different types of buildings. I can envisage a situation where the additional degree of competence of a particular group of persons would have a significant bearing on the range and complexity of works which they would be permitted to certify. It is with that in mind and covering the whole spectrum and variations of classes of persons and different qualifications as applied throughout the whole country that I ask the Deputies to leave it as it is.

Of course the key to this and to the approach that may be taken with regard to, for example, individual architects who might not be formal members of any particular group will depend on the representation on the Building Regulations Advisory Body, in other words, if there is a difficulty as to who will be appointed to that body and to what extent they will be representative of a cross-section of individuals who may have the necessary experience and qualifications to certify. If they are only representative of individuals on a limited number of organisations there is a danger that the Building Regulations Advisory Body might advise the Minister that certain people should be excluded.

There is an interaction here. We can tease this out further on section 13 of the Bill. I do not want to dwell unnecessarily on it now. However, there are two concerns here. One is the concern of the individual who is well qualified and who is not a member of any particular group and the other is the interaction between different groups, some of whom would regard their membership as being possibly better qualified or superior to other groups. I will not get into inter-wrangling between different professional bodies as I am sure the Minister has had a plethora of correspondence in regard to this legislation. On the other hand, there is the concern that a particular person might be picked out and certified as an appropriate person and that a Minister may do so in circumstances that may not be appropriate. There may not be a great deal of reality to that issue. Nevertheless, this amendment was tabled in order to tease out that problem. The advice the Minister receives as to who the certifiers should be may be determined largely by the representative nature of the advisory group the Minister appoints to advise him on the regulations.

The Deputy makes the case for me. That is the reason I want total flexibility — to cater precisely for the person about whom the Deputy speaks, who might not be in favour in a particular month with a particular group, a group to which he might in normal circumstances belong but who would be a perfectly suitable and competent person to certify. I want him included as well and I sought total flexibility to allow me to do so. Individuals can be suitable. I would expect that they would be part and parcel of the certifying process if and when that comes to pass.

I am not pressing this amendment.

Amendment, by leave, withdrawn.

I move amendment No. 5 to amendment No. 12:

In the first line of subsection (2) (c), after "classes of persons" to insert "other than the person or classes of persons responsible for the design or construction of the building concerned".

In a sense we discussed this amendment in the context of amendment No. 1. Of course Deputy Gilmore and the Minister were right in saying that this was moving away from self-certification to third party certification and was approaching the problem from a different route from that taken by Deputy Gilmore. The Minister's main objection seemed to be the cost factor. My concern is two-fold: self-certification may be acceptable in the context of the building control authority — in effect the local authority — having the type of specific functions to carry out checks such as are referred to in amendment No. 14 to amendment No. 12 tabled by Deputy Gilmore and myself, and also in the context of the local authority carrying out all necessary checks if they are under statutory obligation to do so, as I envisage will be the case in the amendment made to the Minister's section 6(4) My problem is that the Minister has not responded to amendment No. 12, which is the one that affects section 6(4). I am assuming at this point that, in a sense, he is not prepared to allow a local authority to play such a role that could result in possibly their being sued at a later stage if a building does not comply with the regulations in circumstances in which the local authority have accepted a certification.

The cost factor is an element in this, but to my mind, in the context of a building built, the safety factor is a greater one. I do not foresee any great difficulty, if a premises is built and there are certain specifications that have to be complied with, in a third party carrying out necessary inspections to be able to certify. In a sense that happens every day of the week. Suppose someone is a first-time house buyer, or is buying any type of house, new house, second-hand house, whatever, any sensible lawyer would advise a client buying a property to get their own architect or surveyor to check it out. The same thing will apply if somebody is purchasing a block of flats or an industrial building. Any decent lawyer will tell a client going to invest large sums of money in a property to get it checked out by his or her surveyor and/or architect; to make sure that planning permission has been obtained, that the planning conditions have been complied with; to ensure there is by-law approval and that all the necessary specifications with regard to that building have been complied with. It happens every day of the week. That third person doing that introduces a degree of independence. They have no particular vested interest in finding that a building has or has not been built properly; their only interest in it is to protect the purchaser. There is not a major expense involved. There may be major expense involved if one is purchasing a very expensive building but in most cases the expense is comparable to the price being paid.

I appreciate that the Minister would have a view that where one builds a relatively uncomplicated, simple structure, the architect or surveyor involved in its design and construction should have an intimate knowledge of its design or construction and should then be able to certify. Equally I do not understand why a third party cannot do the job, in a sense providing that additional protection. I do not see the cost that would be incurred as all that large in the overall context of what is involved in the acquisition of the building. I should like to tease this out further with the Minister because it is as if there is something impossible or unusual in a third party intervening in this way. In the marketplace at present, in other circumstances, this is something that happens on a regular basis. Indeed, currently in the context of the draft building regulations, it is something that happens to assure somebody acquiring a building that the draft regulations have been complied with.

I support Deputy Shatter's amendment to amendment No. 12. Given the fate of my first amendment and the manner in which the principle of certification is to be dealt with, this would be a reasonable approach to take.

I noted what the Minister said earlier — he felt that the cost element would constitute a problem. I do not see that. There will be a cost element involved in certification anyway. Even in the process of self certification I cannot imagine any of the professions doing it for nothing, so there will be a cost element involved anyway. If there is an additional cost in having it done on a third party basis, that additional cost would be marginal given the type of money, the value of property and so on about which we are speaking. There are also many precedents for it. Somebody buying a house will pay a lot of money to people in Deputy Shatter's profession to ensure that the title and so on are in order. If there are costs involved — for example, costs for the builder or whoever, in getting a third party to certify — those costs, having regard to the total value of the property and the issues about which we are speaking, will be fairly marginal.

Additionally, I would have thought that the professions involved would be keen on having it done on a third party basis. I cannot imagine there would be too many people in the professions concerned madly keen to self certify if there were a system of third party certification.

For all of those reasons the Minister should give serious consideration to this amendment. If he were to do so it would allay many of the fears I expressed earlier in the day when proposing my earlier amendment.

I might add my voice to support what is an enabling provision. Among the range of supervisory options open to him, the Minister of the day in giving effect to the building regulations, should give an option to the industry and the consumer to say that if a particular designer or constructor does not want to certify that the building has been built in accordance with the building regulations a third person, other than the local building authority, provided they were deemed to be suitably qualified, could certify. My one reservation — on which the Minister might give his opinion — is whether the precise wording of Deputy Shatter's amendment would exclude the possibility of self certification and require exclusively third party certification. That is the way I read it.

Yes, that is fundamental.

Logically I would not be in favour of that. I would be in favour of a provision whereby a given team of designers could request somebody else to certify that a building had been properly designed, or the construction industry could ascertain whether the builder wanted to do so. I do not think it should be exclusively one or the other but I see some merit in making provision for one or the other as comprising part of the range of options of the Minister of the day when he comes to drawing up the regulations. If the legal interpretation is that it does exclude self certification, then I am not in favour of the precise wording of this amendment. But I would recommend the principle of the provision in some form to the Minister.

That just about sums it up. Deputy Shatter's amendment rules out self certification entirely and allows third party certification only. That is what the amendment is about. Deputy Quinn is right in saying that both options are available to the Minister under the legislation, both third party certification and self certification. There are costs but one cannot specify them in great detail here. The costs arising under the self certification system would not be additional as the same person who designed and constructed the building would certify it. I am at a loss to understand why Deputy Gilmore should seek to impose costs on ordinary persons. An engineer or builder constructing a single house or an extension to a house in the country should be entitled to certify it himself rather than incur the increased cost of bringing in an outside person.

Amendment put and declared lost.

Amendment No. 6 in the name of Deputy Shatter. Amendment No. 7 is related and these amendments may be discussed together.

I move amendment No. 6 to amendment No. 12:

In subsection 2, to delete paragraph (h).

This amendment relates to subsection (2) (h) in the Minister's proposed section 6, which confers a discretion on the Minister to make provision for the charging of fees for the registration of certificates of compliance, the submission of applications for fire safety certificates or certificates of approval, the provision of copies of certificates or other documents or extracts therefrom, the carrying out of inspections and tests and the testing of samples taken pursuant to section 10 and any other matter that the Minister considers appropriate. The amendment is tabled because we have taken the view that it is not appropriate that the authority should charge fees for these functions, which are part and parcel of what the building control authority will have to do to ensure that the obligations imposed on them under the legislation are exercised. The Minister objected to the proposal with regard to third party certification on the basis that it would involve unnecessary additional cost. In this context where a statutory obligation is conferred on a building control authority the general public should not have to pay to get those functions performed. This is what the subsection appears to envisage. It is our view that this is inappropriate and that subsection (2) (h) should be deleted from the Bill.

I cannot concede to the Deputy since his amendment would preclude the charging of fees for work arising for the building control authority. One of the main attractions of the self-certification system is that the costs arising for the building industry will be minimised and I will take full account of that in determining the level of fees, if any, which would arise for the registration of certificates of compliance. Considerable resources would be required to operate an approval-type certification system by building control authorities and I cannot envisage any circumstances where this type of system could be put in place without the consequent imposition of fees. Fees are charged for planning applications, for example, and most people accept that a public service must be paid for. In this instance fees would be a fairer method than a charge on general taxation. I do not envisage establishing a system of this type in the near future and I do not envisage anything more than a modest fee for the provision of copies of certificates or similar matters. It is inherently reasonable that some charge should be made for the service. It is necessary to take power to charge for inspections and tests pursuant to section 10 as building control authorities might have to go to considerable expense in the process of carrying out inspections and tests, some of which can be quite complex, and which may be occasioned due to errors or omissions on the part of a designer of a building. In those circumstances it is reasonable to have this type of fee.

I want to speak about my own amendment but let us deal first with paragraph (h), the principle of which is the charging of fees by the local authority. In so far as such fees represent a form of direct taxation I have no fundamental problem since they are levied on the prospective beneficiaries or agents of the beneficiaries of the service provided. It would be contradictory for me to adopt any other position since I, as Minister of State, was responsible for bringing in planning application fees and the like.

I did not intend to remind the Deputy of that, unless he dragged it out of me.

I am quite prepared to take responsibility for the good and the bad things done during my time in office. I lost some friends along the way but I think they may have come back. We must distinguish between a specific additional service provided to the benefit of a person by the local authority and a service that a local authority would normally provide as part of basic administration. I am not opposed to the principle of charging fees, but I suggest that there should not be a charge for the registration of a certificate of compliance. To impose such a charge would be mean and inconsistent. Planning permission application fees will be charged anyway, as well as some form of building by-law fees. A charge for the registration of a certificate is unacceptable in principle.

My amendment would propose to alter the wording of subsection (2) (h) (iv) which deals with the carrying out of inspections and tests and the testing of samples taken pursuant to section 10. I am proposing to insert the words "reasonably required" after the word "tests". Theoretically there could be an hysterical reaction by some people to a building considered by them as third parties to be grossly in breach of the building regulations. They could persuade a local authority to avail of the powers under section 10 to conduct a series of fundamental tests which might involve cutting concrete slabs in order to examine foundations when such tests might not be reasonably required. The law has to give some protection against vexatious interventions in the building process. Here again I am being consistent in relation to our planning law. There is provision in the amendments to the original planning and development legislation with regard specifically to An Bord Pleanála for a mechanism whereby a vexatiously motivated intervention could be prevented. The proposed addition of "reasonably required", which ultimately will be a matter for a court to determine if there is dispute in relation to it, is an attempt to provide some sort of balance and I am offering it in that context.

I am amused to hear the Minister, so soon after admonishing me about wishing to increase the costs to house builders and to a typical constituent of his own who might be putting on an extension to his bungalow, so stoutly defending the charging of fees here. However, I am happy to say that on this occasion I agree with him. Local authorities have certain functions that they will have to carry out under this Bill. It is correct that the industry should make a contribution to that, provided of course the charges are reasonable.

I do not agree with Deputy Quinn's first amendment. Although it is simply a question of registering the certificate of compliance, the registration of that certificate of compliance should involve certain additional responsibilities for the local authority. Both Deputy Shatter and I have amendments down which deal with the building control authorities carrying out checks, inspections and so on, again which will involve costs and staffing for local authorities. Modest scales of fees are appropriate in these circumstances and I have no problem with that. I agree that there should be a system of charging fees and on this occasion I am not supporting Deputy Shatter's amendment. Nor will I be supporting Deputy Quinn's first amendment.

On occasions one has to conceal one's amusement at the different approaches taken to different issues. Listening to Deputy Gilmore you would think that The Workers' Party had never opposed charges of any description which pay for local authority services. Of course this is the sort of charge The Workers' Party like, the surreptitious one, the one that is introduced in legislation that the general public regard as too complex to read. This is a nice, surreptitious way of supporting local charges, not quite the up front way of supporting the refuse collection charges or the water charges because that would be far too fundamentally exposing yourself to the political winds. It is refreshing to hear Deputy Gilmore acknowledging that local authorities actually need money to provide their services. I look forward to him being similarly forthcoming at meetings of Dublin County Council——

I will be forthcoming in a minute.

——on which we are colleagues. It is the surreptitious nature of this charge that I object to. Let us look at what we are doing here. This is not a planning application charge. Deputy Quinn was right, in that except for certain waivers in this area there are charges now for planning application, building by-law charges and all sorts of other charges in the context of planning matters.

Let us look at the other side of the coin. Under the Planning Acts, if a complaint is made to a local authority that a developer, for example, has not complied with his planning permission, the local authority do not charge to go out and check that the Planning Acts are being compiled with. If I am living in a housing estate and the developer has not provided open space areas or has not completed the estate or if I complain that some of the planning conditions with regard to the building of my house have not been complied with, the local authority — it is the policing authority then and no longer the authority to which you are making application for something — do not charge people for carrying out their statutory duty of ensuring that planning permission has been complied with. I would suggest that if local authorities started charging people who contacted them to complain that planning permissions had not been complied with, if they charged fees before they checked the building or sent someone out to inspect it or if they charged fees, for example, to bring proceedings under the Planning Acts to seek to require a developer to comply with the planning permission, there would be a national outcry and rightly so. Who would be in the leadership of the outcry? The lads on the left. The Workers' Party and the Labour Party would be holding hands with the protesters, saying how outrageous it is that the local authority are charging to fulfil their statutory obligations.

I do not disagree with Deputy Quinn in the sense that it is quite reasonable that with certain types of planning applications charges be levied. It is correct that they be levied in a number of areas. They are being levied and that is welcome income for local authorities but we are not talking about that there; we are talking about something quite different. We are talking about simply taking a certificate that acknowledges, for example, the registration of certificates of compliance and recording in the building control authority the fact that the regulations relating to buildings have been complied with. That is a bit like the local authority sending its planning officer out on site to check that the local estate, the shop or the industrial building is being properly built and the planning officer comes back to the local authority and puts a note on the file saying that he has made the inspection and everything is in order.

Section 10 is a policing section. It gives powers of inspection to authorised persons. It allows the building control authority to examine a building and, to use non-legalistic language, to check out whether it is being properly built, having regard to the requirements that have been laid down. To justify a charge under section 10, Deputy Quinn said that you might get a vexatious complaint. Of course you might. Someone who is totally crazy might think that his next door neighbour's house is about to fall on his head when the house is soundly built. That person might complain that planning permission has not been complied with and he may ask the local authority to look at it. The majority of people who raise problems of this nature have genuine, bona fide worries. Are we going to charge everyone because of the odd lunatic who appears on the scene? It is obviously left to the building control authority or the local authority to make their own assessment whether it is reasonable to carry out an inspection under section 10. It does not say in that section that, upon any individual raising a complaint with a local authority, the local authority are obliged to inspect. That section empowers the building control authority to operate in a particular way.

In a sense the inspection that will be carried out under section 10 has its mirror image in the Planning Acts where the planning inspector goes out to make sure that planning permissions are being complied with. This is a different type of inspection at a different level. I find it very difficult to see the logic of saying that in these circumstances the local authority should levy charges. In the context of section 10 I am not sure how they can levy charges because the type of approach that may be required may vary widely in the context of examinations and inspections that are carried out and in the context of, for example, being permitted to take samples of materials carried out in construction works, checking out those samples and bringing equipment. The equipment might be very small hand tools that someone carries in their back pocket or it might be a massive piece of machinery.

I do not know how we are going to levy charges under section 10. Are we going to classify a series of particular types of complaints and work out either the verbosity of the complaint or the level of work required by it, or is the time spent on site going to result in particular charges? If a building control authority want to get money easily will they be able to send out half a dozen people to a site to take samples when only one is required and have them do it for five days rather than half an hour? I appreciate that the Minister is trying to provide a way of financing the work local authorities carry out. He is engaging in a little of the surreptitious as well in this area because the Government do not want to come out front on how they believe local authorities should be financing their activities. Local authorities outside of the Dublin area, with the support of Fianna Fáil, are busy in their current estimates levying water charges, refuse charges and sewerage charges while in the Dublin area the Fianna Fáil groups are running for cover and not levying any charges.

I am not saying that the Minister should or should not levy charges. What we need to do is have a comprehensive look at taxation generally and on how we will fund local authorities in the future. However, this is more of the surreptitious; we plug in another bit of a charge for what is a policing function. It is a bit like suggesting that if my house is robbed and I want the Garda Síochána to investigate it I should first pay them a fee or I should be charged a fee based on the number of man hours involved in investigating my complaint. If they have to come up to my house to take fingerprints would that be the equivalent of taking the sample here and will they charge me per fingerprint?

There is a lack of logic in the way this section applies. It might be a politically neat way of getting some more money from local authorities but I do not understand how section 6 (2) (h) will work in practice. Even if it does work I am very suspicious of anyone who brings a charging measure into this House and says "there will be a modest fee." That was said during the last century when income tax was being levied. What fees does the Minister have in mind? Paragraphs (i) to (iv) of section 6 (2) (h) spell out specific things the Minister can charge for but apparently under paragraph (v) the building control authority can charge for any other matter the Minister considers appropriate. I ask the Minister to indicate to us what fees he has in mind under paragraphs (i) to (iv). Will they be laid down as a specific fee in each case by his Department as part of the regulations or will the regulations contain an empowering mechanism whereby the local authorities can charge different fees for similar functions? Will the Minister detail for us the other matters he considers appropriate which would give rise to charges under this Bill? Is that merely a cover-all provision in case there is something left out which someone may discover later on can be charged for or is there something more the Minister envisages might give rise to charges? I do not know the answers to those questions. Before we proceed further I ask the Minister to clarify what fees he has in mind. What is the modest fee? Will it be £5, £10 or £40 to register a certificate of compliance? How much will it be and will it depend on the value of the relevant building? I do not know the answers to that conundrum and I do not think anybody else in this House knows them either.

I was disappointed and surprised to hear Deputy Quinn say he accepts all of this section subject to the amendments he has tabled. We do not have any of the information I have sought. If we take the view that this is a policing section, the section necessary if the local authorities can perform their functions so that certificates of compliance can be registered, it is necessary that all of these things happen, and there are obligations imposed on the local authority which relate to their policing this legislation. I do not see how we can go along with these types of fees in these circumstances. On the other hand I would fully support the type of fees in the planning area for planning applications. They are logical and right but they are not in the policing area while these are.

I want to clarify a couple of points for the benefit of Deputy Shatter. First, there is nothing surreptitious about what I am proposing. I cannot think of anywhere more inappropriate to propose something surreptitious than in the national Parliament which is fully recorded and open to the public.

I want to explain to him the difference between water which everybody consumes, which PAYE taxpayers have already paid for through their taxes, which the Minister's Government at a previous time committed would be fully paid through the domestic rate support grant to local authorities and which is universal to all people, and the type of service we are talking about here. Let us be quite clear what we are talking about. We are talking about builders who might have a very substantial scheme or a large project of one type or another and who have no difficulty in paying for a whole range of services in the lead up to the completion of that particular project. They pay architects, solicitors and a whole range of professional people for services which will lead towards the completion of that project. Why should they not have to pay the public body who have responsibility for the enforcement and supervision of regulations which are made to protect the public good? That is the difference here.

I am surprised that Deputy Shatter, the Fine Gael spokesperson on the Environment, is not more familiar with the polluter pays principle of which this argument is an extension and is opposing the idea that fees should be charged for this purpose. I want to repeat that it is reasonable that a fee should be paid. It is also reasonable that that in turn would help to fund the local authority. This Bill will have to be implemented effectively. Deputy Shatter would be the very first to accuse me of being unreasonable about where the finance will come from to enable local authorities to do their job properly. Local authorities will have to have a policing role in this regard. As I said earlier I have put down a number of amendments which I hope, if the Minister accepts them or they are agreed by the House, will strengthen that policing role. I do not think it is unreasonable that people who, at the end of the day very often make large profits from the buildings we are talking about here, should make a modest contribution to that policing service.

I was sincerely hoping that this debate would not degenerate into the kind of ideological barracking as to who should or should not pay for services rendered. This is how we slipped away from this legislation on the previous occasion. I am not going to add to that except to say that Deputy Gilmore should take the Minister's advice and not be so easily provoked by Deputy Shatter. He is rising the Deputy deliberately. The Deputies can engage in such battles in some other place on another occasion.

This comes down to the question of the little fee which will have to be paid. As Deputy Gilmore rightly said work will arise for building control authorities in registering these certificates. The appropriate level of the fee will not be unduly onerous in this case. The Bill provides for requiring local authorities to register the certificates. This will impose certain obligations on local authorities. We want them to carry out their functions properly in relation to certificates. They will have to register them in a systematic manner which will enable them to be retrieved when they are required. They will have to be stored properly and in a safe manner. Those activities will impose a burden on local authorities. They will have to provide accommodation, staff and record system and money will have to be found for them. Many of the records and certificates will have to be retained for some time.

The building control authority will not set the level of fees to be applied. The Minister will determine the level of fees to apply and will have to carry full accountability for them. Deputy Shatter will have ample opportunities to say if the fees are inadequate or not. It will not be left to an individual local authority to decide to charge whatever they think fit or in whatever location they consider appropriate.

The question of paying fees for inspections and tests is an important issue. They may be required if it comes to light — I hope it will not — that a certain building in the course of construction or a completed building, is other than in accordance with the building regulations. I am sure Deputy Shatter will agree that local authorities should be in a position to make those inspections and tests. Deputy Quinn, who is expert in this regard, will agree that those tests have a cost factor attached to them. On occasions complex technology is used in the tests and it has to be paid for.

Deputy Quinn raised a question about a provision for inhibiting vexatious planning appeals. I should like to point out to him that the planning code allows third parties the right of appeal but the building control regulations will not allow third parties to become involved in something that is a matter between the applicant—be he the builder, designer or the developer — and the building control authority.

I should now like to deal with amendment No. 8, tabled by Deputy Quinn, and I hope to set his mind at rest in regard to the point raised in it. That amendment attempts to ensure that a fee may be charged only in a case where an inspection and test pursuant to section 10 is reasonably required. While I can sympathise with the motivation behind the amendment, I am legally advised that the insertion of the word "reasonable" will achieve nothing because it is implicit in the section that tests can be required only when it is reasonable to require them. A building control authority must act reasonably in its use of any of its powers whether the word "reasonable" is inserted in the section or not. I will inform local authorities, prior to the introduction of the control system at local level, of the concerns which have been represented to me in this regard and expressed in the House. I should like to assure the Deputy that he need not be unduly concerned about the question of reasonableness being applied.

Question, "That the words proposed be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 7 and 8 not moved.

I should like to remind Deputy Quinn that any outstanding issues in regard to those amendments can be raised by way of amendments on Report Stage.

I move amendment No. 9 to amendment No. 12:

In the fourth line of subsection (2) (i), after "thereunder" to delete", 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".

This amendment expresses the concern voiced by the profession. Local authorities are getting into the practice of doing belt and braces types of operations in relation to some legislation under which a certificate is required. They require the certifier to guarantee that not only did the documentation or the proposal comply with the specific requirements of the planning legislation but that it covered a number of other matters. I will explain this by giving an example. Planning permissions obtained from local authorities contain a standard type of condition that the consent of the fire officer must be obtained, that the consent of the chief sanitary officer must be obtained and that the consent of other local authority bodies, as distinct from the planning authority, must be obtained. Professional people are subsequently requested by those in Deputy Shatter's profession in the course of conveyancing to certify that all the conditions of a planning permission have been complied with. One of those conditions may, for example, include the need to get the approval of the chief fire officer. Obtaining the written approval from a chief fire officer is a bit like winning the lottery. Certainly, in the present climate it depends very much on the order of the day, the mood of the individual, or whether intemperate comments were made in the Dáil in regard to the safety of local authority three storey dwellings or not. Those comments would have a decided effect on whether written approval is given. I am not being facetious in making those comments.

There is a tendency for local authorities to do "belt and braces" type operations in requiring applicants to comply with all sorts of legislation. That should not be rolled up into one certificate. Those who have requested me to table this amendment represent those who work at the coal face of the professional practice. They have told me that it is not that they are unwilling to obtain such certificates but that they do not feel it should be necessary to obtain an omnibus certificate with all the information required on one document. It is their view that if one fails to comply with one of the four or five requirements one cannot certify that the planning permission has been adhered to. I should like to ask the Miniter to consider this amendment and, perhaps, if he is not sufficiently briefed on the issue, to come back at a later stage.

This paragraph will enable me in making building control regulations to streamline to the greatest extent possible the various requirements under both the building control and planning codes. I am taking the powers solely in the interest of minimising procedural and other matters which members of the public will be required to comply with. I am not, therefore, prepared to accept the amendment as to do so would only preclude the possibility of cutting down on red tape. I should like to point out that if the amendment was accepted the provision would serve little purpose in view of the limited scope to combine documents or applications arising from the requirements in the building control system. I understand that there may be some concern that the wording might give some legality to the inclusion in a combined document of requirements relating to permissions that would not have any legal basis under the existing planning code. That is not the problem.

I have specific legal advice that if something is not valid under existing planning law its inclusion in a combined document provided for in this paragraph will not validate it. That is the legal advice available to me and I trust it has been helpful to the Deputy.

I will consider the Minister's response and I may bring forward an amendment on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 10 to amendment No. 12:

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

I am concerned, and I suspect Deputy Shatter shares my concern, that certain categories of buildings would be excluded. My reading of the section, and perhaps the Minister will signal that I am interpreting it correctly, is that if we pass this section he and his successors would have the power to exclude a particular type of building from the provisions of this section. If that is the case, and I am taking the Minister's nod to be in the affirmative rather than to be one of worry, I would be concerned that whole sections of construction would be excluded from the provisions in relation to certification, approval or scrutiny. It has been suggested from time to time in the debate on this Bill, particularly in the debate on Second Stage, that, for example, domestic construction could be excluded. I would be totally opposed to this. I do not mind different categories of certification or different levels of approval, but I do not want any category of building to be excluded.

We are learning from our mistakes: in 1962 and 1963 we excluded the requirement of planning permission for agricultural buildings. If we were to introduce that Bill in the House today, everybody would agree that planning permission for any kind of agricultural installation should be required. We have pretty well reached that position now. I do not want this Minister or any other Minister to find himself in the position where he would be able to exclude certain categories of buildings. The pressure on him to do so would be enormous. To that extent a more precise amendment would, I suspect, seek to remove the word "exclusion" rather than to delete the whole section. In looking at it again, I find I have no difficulty with the idea of differentiation in relation to the types of certificate which would be required or in relation to the scrutiny which would be required with regard to the different categories of buildings, depending on the complexity of construction. The exclusion of any type of building from the provisions of this Bill is unacceptable.

Deputy Quinn raised the problem which I was going to raise. Indeed this brings us back to the issue I raised some time ago. I did not raise that issue in anything other than a serious way. Deputy Quinn referred to three storey buildings. I am not suggesting that we should not have three storey buildings either in the public housing sector or in the private sector. There are many fine three storey buildings in this city which were built in the last century. I am seeking to ensure — and this section relates to it — that fire safety regulations will be in place, that where a fire takes place there will be means of escape and where a fire takes hold it will not literally take a stranglehold on the building within a matter of minutes because of the materials used.

I have already given two examples of very horrific fires with tragic consequences, one of which occurred in the city and the other in the county of Dublin during the past ten days, both of which resulted in the deaths of young children. One of these fires raises serious concern about the methods of escape and the other gives rise to concerns over the materials used. Like Deputy Quinn, I am anxious to ensure that domestic dwellings would not be excluded from the provisions of the fire regulations.

The Minister did not respond to the issue I raised earlier in relation to the local authorities carrying out inspections of houses within their area of control. I did not raise that as a whimsical or side issue but rather as a serious one. What we have done is to use this debate to try to get the Minister to ensure that, if remedial works are necessary to resolve any problems shown up by the fire in Summerhill, the local authorities will do those works and take action. I see the application of section 6 (2) (j), in the context of applying fire safety regulations to domestic dwellings being very important. Like Deputy Quinn, I am anxious to ensure that no class of buildings would be excluded from that provision.

The purpose of subsection (2) (j) is to enable the Minister to exclude from certain specified provisions of building control regulations any persons, bodies or buildings as he sees fit. I envisage this power being used sparingly but it would add a degree of flexibility to the Bill which could be important in particular circumstances. The provision could be used, for example, to exclude low rise housing from the provisions of the control system in the interests of reducing the volume of new work which would result. It would also enable the impact and effectiveness of the control regulations to be assessed while confining them to the more complex buildings. This would not exclude other buildings, with some minor exceptions, from the provisions of the building regulations. I cannot accept the amendment, but it should be clearly stated that building regulations to be made under section 3 would apply to domestic buildings.

I regret that Deputy Shatter keeps referring back to the unfortunate tragedies which recently took place in the city. We all express our sympathy to the unfortunate families who lost members and who were in any way inconvenienced by that. Deputy Shatter intimated that Department engineers inspect houses in only a superficial way. I would not like that to go on the record without rejecting it out of hand. If Deputy Shatter represented a rural constituency he would be aware of how thorough the Department of the Environment's inspectors are in checking out houses, the method of construction, the way in which the roof was constructed, if the struts are in the right place, the cavities and the insulation. All he need do is ask any rural Deputy and he will give him a fair indication of the number of times they have had to listen to householders explain just how thorough the inspectors were. I reject the suggestion out of hand. I think the Department's inspectors are very thorough and do a good job.

I do not think it is appropriate for us to go into detail on the unfortunate tragedies to which the Deputy has referred on a number of occasions. All I want to say is that there is no evidence to show that the deaths occurred because of the way the house was constructed. I reiterate what Deputy Quinn said in that regard. In effect, the house is no different from any other three storey house in the country. No regulation will cover every eventuality, particularly where there is human involvement in terms of complying with practical safety precautions as distinct from structural matters. We should leave it at that. We all regret that tragedies do happen, but it is no harm to say that in my experience most of the fires which occur in homes result from the bad use of appliances and other things unrelated to the design and construction of the building. I would just like to leave it at that.

I do not want to dwell on this and my intention is to ensure that we do not have a repetition of those incidents. I want to disabuse the Minister. I did not say anything of a derogatory nature about any engineers attached to his Department or to the local authority. I do not know where the Minister got that from. I would assure the Minister of one thing in the context of the Summerhill tragedy and that is that I visited those houses and I know what I am talking about. I have no doubt that due to the design of the houses and the absence of fire escape facilities from the top floor and the narrowness of the stairway leading from the second to the third floor, if another fire occurs in any of those houses there will be a further loss of life.

I accept that a fire could occur from the bad use of an appliance. I do not say that the fire would originate from any defect in the building. However, if a fire occurs in any of those houses and adults or children are on the third floor, and if the fire reaches the staircase of the second floor, there is no way out except to jump. My concern is that there are very simple means of dealing with that problem which Dublin Corporation do not appear to be prepared to take. I do not suggest that the houses are improperly built.

We are asking local authorities under this legislation to be building control authorities and we are mirroring them with the fire authorities and the specific regulations we are talking about under paragraph (3) (j) in relation to fire safety. I am concerned that if a fire occurs in another of those three storey local authority houses or in a private house which is similarly constructed there will be further deaths. I will not say anything more about it. I am not trying to make political capital out of something which is a major tragedy. I am anxious to ensure that it does not happen again in the city or county of Dublin due to the lack of fire escape facilities which was the problem here.

The Minister seemed to say in reply to Deputy Quinn that it is envisaged that low level housing — I presume two storey or one storey housing — can be excluded from the application of paragraph (3) (j). Paragraph (3) (j) will lay down regulations about the type of materials used. The type of materials in use in the provision of a building will greatly impact on what might happen in the event of a fire occurring. That is obviously a concern. I appreciate that it may not be possible overnight to bring every type of building under the ambit of this legislation and that there may be a need for a lead in period for some aspects of it, but nevertheless the concern remains with regard to domestic housing stock.

Amendment, by leave, withdrawn.

Amendments Nos. 11 and 11a may be discussed together.

I move amendment No. 11:

11. To delete subsection (3).

This amendment gets to the point of whether the local authorities should assume any responsibility for ensuring that the information contained in a certificate is factually correct. Deputy Gilmore's amendment No. 14 is probably a better amendment which does not require every piece of information to be accurate but enables the local authority to carry out checks on documents from time to time. The intent behind my amendment, and I suspect behind Deputy Shatter's amendment, is to put some responsibility on the local authority to ensure that the documentation is factually correct. We are all conscious of the frailties of the human condition and if the Minister opts for a system of self-certification, some sort of safeguard must be incorporated to curtail the actions of unscrupulous people who will certify buildings knowing that the certification is not correct.

My amendment is to ensure that the local authority have some responsibility. Earlier we referred to the fact that the local authority would charge for the registration of documentation and would charge fees for carrying out inspection and so on. In counterbalance, what my amendment and Deputy Shatter's amendment proposes is that there should be a form of obligation on the local authority. I would ask the Minister to respond to that.

As Deputy Quinn pointed out, my amendment No. 14 is related to this. There are two issues here. The first is that we have now whittled the whole system of certification down to a very narrow form of self-certification and the question of third party certification has gone. At issue here is what safeguard we will use to ensure that what actually goes into the file in the local authority complies with the regulations. In my case where self-certification is used, for example in the US where it is used in relation to tax collection, there is a system of random checking so that people know that somewhere, sometime, a check will be made to make sure that everything is in order. That principle should be applied. My amendment No. 14 tries to ensure that that would happen and that the local authority, who after all act for the public, will carry out an active and effective role checking and monitoring to make sure that building regulations are complied with.

The second issue relates to the subject matter of Deputy Shatter's amendment, which is whether domestic dwellings are included in the provisions of this Bill. I am a bit concerned by some of the Minister's comments which strongly suggest that domestic dwellings are being excluded from the provisions of the Bill. I support Deputy Shatter's amendment that a specific provision be made to include domestic dwellings in the Bill so that there is no ambiguity about it and we are clear that the building regulations we are providing for will ensure that people in ordinary houses are living in dwellings that are properly built, complying with the regulations the Bill is enabling the Minister to make.

Amendments Nos. 11 and 11a are, in a sense, mutually exclusive. Amendment No. 11a was tabled on the assumption that amendment No. 11 would not necessarily be successful. On that basis I formally propose that there be added to the wording of subsection (3) the words "Notwithstanding the generality of this subsection, the Building Control Regulations shall provide for domestic dwellings." Amendment No. 14, to which Deputy Gilmore has referred, would provide for an obligation to carry out checks in respect of work in progress and completed buildings and is also tabled in my name. I would see the interaction between them as meaning that what is now going to be paid for is a service that is being properly carried out; that there is a specific protection there and that, at the same time, these regulations will provide for domestic dwellings and we will not find in the long-term that domestic dwellings are entirely or substantially excluded from their application.

Before I ask the Minister to reply, do I take it that we are discussing amendment No. 14 with amendments Nos. 11 and 11a?

I was wondering about that because when Deputies Quinn and Gilmore were speaking they were talking to amendments Nos. 13 and 14 which have nothing to do with amendment No. 11. Subsection (3) has nothing to do with the duties of local authorities. Amendment No. 11 to subsection (3) will enable building control regulations to make different provisions in relation to buildings or classes of buildings or to buildings in different areas. I consider this to be a sensible provision which would allow an approved system to be implemented in a particular area or areas and for particular buildings or classes of buildings while a self certification system could operate in other areas or for other buildings or classes of buildings. It would also allow for certain classes of buildings to be excluded from the control system in the initial stages of introducing building regulations.

I am not inclined to accept Deputy Shatter's amendment No. 11a because in starting up a particular scheme of control it may be necessary to exclude certain types of buildings, including domestic buildings, in the interests of curtailing, to a reasonable degree, the workload arising for building control authorities. I would make the point that there are de facto controls on housing already in place including the new house building guarantee scheme and house grant inspections. The Deputy's amendment could also have the effect of forcing a building control authority to apply to itself for approval for the building of houses which it undertakes while wearing its housing authority hat. For those reasons I cannot accept the amendment.

In the context of my not pressing amendment No. 11a, would the Minister consider looking at this issue? I appreciate there may be a need to progressively implement aspects of the Bill and that it may not apply universally immediately, but there are concerns in the context of subsection (3). It appears that buildings of a similar class may be treated differently in different areas of the country and I do not see the logic in that. There are problems with the wording of subsection (3) and in the way it may operate. If one is building a factory in Ballina and a factory in Dublin I do not see why there should be different building control regulations applicable to each. There will be a need for a uniformity of standard.

In the context of ensuring that domestic dwellings are covered — and I do not want to keep harping back to the Summerhill tragedy — the problem about the local authority being the building control authority is that in the context of its own buildings it would be certifying its own work. That is not logical. The building control authority, when acting as a housing authority, should have to comply with the same standards it imposes and that need to be imposed on everyone else. That must happen and there should be a statutory duty in that area.

There is a need to put in place a statutory provision where domestic dwellings in the private sector are covered. I appreciate the Minister is saying that there is a problem with this applying to local authorities. I tabled the amendment in this way to allow the facility of raising the issue of ensuring that local authorities apply the same standards to themselves as are required in the private sector because, quite honestly, we have not always seen that in the past in certain areas. If one wants to take something that is not a domestic dwelling, take the illogicality of siting a motor taxation building at the back of the Four Courts in Dublin without a single parking space for anyone who wants to get road tax or a licence. While that building was being built the same local authority, Dublin Corporation, would have required any private developer building a similar office to provide car parking facilities. So we have the unique application of one set of rules for the general public and another for the local authority, the planning authority. They designed a building to provide a service for people who drive cars, but they did not provide a single parking space for anyone who wants to use the building. That is a simplistic example, but we are talking about more fundamental things under this Bill. It is not always the case that local authorities apply to themselves what they are applying to others. Often the standards they apply to others are right but they are not obeying them themselves.

It is important that provisions be made to ensure that building control regulations extend to private domestic dwellings. If the Minister would consider coming back to us with a provision that within a specified period, within a year or two years of the passage of the legislation, regulations will be put in place to apply to domestic dwellings to allow for a progressive implementation of it, I would be quite happy with that. I am concerned that in the context of cost saving and work saving, and ultimately at the cost of the fabric of what we are building, we may find domestic dwellings permanently excluded in practice from this legislation and from its application. That is a major concern.

The Minister appreciates the fact that the Deputy understands the legislation will be applied progressively. That is clearly stated. It should be clearly stated now that the regulations will apply evenly across the board throughout the country. That is the intention of the Minister. They will apply to houses wherever they are located. As far as parking is concerned, that comes under the planning legislation, and the Deputy appreciates that.

Amendment, by leave, withdrawn.
Amendment No. 11a to amendment No. 12 not moved.

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

In subsection 4, in the third line, to delete "not be under a duty to any person" and substitute "be under a duty".

Section 6 (4) provides that—

Where a certificate of compliance 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 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,

There are other provisions in that subsection. The amendment I have tabled deletes the words "not be under a duty to any person" and replaces that by imposing a duty on the building control authority. In a sense there is an interaction here between that and amendment No. 14 which we referred to earlier.

This is all about ensuring that these certificates mean something, that the building control authority actually can monitor what happens and that the certificate does not just leave the certifier vulnerable or liable for not complying with the regulations, but that where a local authority have accepted a certificate and have accepted that a building is properly built, if it subsequently turns out the regulations were not properly complied with, the local authority, have a liability. I see no merit in our giving public bodies, be they Government Departments, local authorities or anyone else, statutory functions to protect the public and, indeed, charging for them if it turns out that that protection was not given and they are then immune from any recourse on the part of the general public who are affected directly by the failure of the local authority to fulfil their statutory functions. Hence the amendment I have tabled, and I await the Minister's response to that amendment.

Let me say, before the Minister does, that perhaps I misled the House by speaking on the previous amendment about the substance of this amendment and amendment No. 14. Therefore, as I said earlier, my comments apply to this amendment and the other one.

I think we are dealing with two extreme positions here. On the one hand the Minister's amendment absolves the local authority of any responsibility in relation to the regulations and ensuring that the buildings and work comply with the requirements of the regulations. On the other hand, Deputy Shatter's amendment gives the local authority all the responsibility, virtually, as I read it, to the point of absolving the certifier. We have to find an accommodation between those two. It is correct that the local authority have an important role to play here given that they are not going to be the certifying body now; they are not going to be the body giving the approval. The role they have to carry out is one of inspecting, policing, carrying out checks and making sure in so far as they can that the certificates that are submitted to them mean that the regulations are being complied with. The amendment Deputy Shatter and I have proposed as amendment 14 gives that responsibility to the local authority to carry out those checks and that would be clearly known to the people submitting the certificates in the first place. That is somewhat different from a situation whereby if a certifier in some way misleads the local authority the local authority can then subsequently be liable for that. I would be very cautious about a position where the taxpayer would end up having to pay for the fault of the certifier in the first place. Certainly if the local authority failed in their duty to carry out the necessary checks on the entire system there would be a liability on the local authority, but I do not think a blanket liability should be conferred on the local authority, neither do I believe they should have no responsibility at all as appears to be the case from the Minister's amendment.

This amendment does not absolve the certifier in any way whatsoever but it would result in a dual liability, a liability on the part of the certifier and a liability on the part of the local authority. It would seem that where a local authority or any Government body are given a public function to perform, in this case to protect, in effect, the general public, and if they fail to perform their function properly they should be liable. Indeed, when the State sought immunity for failure to perform functions in the context of a general State immunity against being sued, the courts in 1969 in the Byrne case made it clear that the State as such is not enabled to claim such immunity. I am not suggesting the local authority should carry the can in the sense that if something goes wrong the person who certified should be let off the hook, but if somebody certifies something that is not accurate the local authority under this legislation have a duty to act as a building control authority and are given powers that Deputy Gilmore and I, in amendment 14, want to extend and make more express to carry out checks. This amendment would give recourse against a local authority if they had not properly as a building control authority fulfilled their function. This is the very essence of ensuring there is a protection for the general public. The Minister gives a blanket exemption in his provision which means in effect that, no matter how negligent a building control authority are in the fulfilling of their functions under this legislation, an individual affected by that negligence will have no recourse against the local authority.

I am not saying this will necessarily ever happen but if, say, an architect or surveyor who has somewhat fly-by-night practices and has been issuing certificates all over the place for a couple of years under this legislation leaves this country and goes to live in Australia or Timbuktu and nobody knows where he is, and it turns out that his certificates were not accurate but that the local authority accepted them, not having carried out any spot checks or monitoring, are we saying there should be no recourse in such case against that local authority as a building control authority who failed to fulfil their statutory functions? I do not think we can say that. My amendment is designed to ensure that there is a right of recourse. This will simply ensure that building control authorities will fulfil their functions properly and not feel this is an area in which they can perhaps be somewhat lethargic in fulfilling their functions, because for example they are under-funded or have other priorities they wish to pursue. We all know that at present in some local authorities there is a failure to comply with planning permissions. It can be extremely difficult to get the necessary action taken to force cowboy developers to fulfil their palnning obligations and the bringing of court proceedings can be extremely slow simply because the local authority are overworked. A local authority operating a whole series of different statutory functions as a building control authority may have other priorities. If we are serious about this legislation there is no justification for the blanket protection afforded to that building control authority under section 6 (4) as we currently have it.

The amendment as submitted in Deputy Shatter's name is unacceptable. If self-certification were introduced it would have the effect of making building control authorities responsible for all defects in construction and output, to say nothing of the impossible workload it would generate for them. The consequences of accepting it would be to create potential liabilities for local authorities of such magnitude as to be a recipe for disaster in so far as the finances of the authorities are concerned.

Deputy Shatter appears to want local authorities to unilaterally underwrite the vast bulk of construction activity. That is simply not on. The responsibility for building lies with those who design and construct buildings and not the building control authorities. Subsection (4) is inserted so that with the self-certification system the liabilities of building control authorities do not extend beyond what is reasonable. It is not reasonable to expect building control authorities to take on board a duty or duties which would bring with them inordinately extensive liabilities.

Maybe I should say one word about the liability matter because so many concerns have been expressed on this matter already in this debate. I want to put it clearly on the record that the Bill stands apart from the issue of liability. Liability is determined by the courts having regard to the law of contract and tort and these apply in the particular circumstances of the case in question. Nothing in this Bill or in regulations to be made under it, will alter this. I would ask the House to acknowledge the point and to accept that liability and related matters, such as ensuring against them, are really extraneous to the subject matter of the Bill. I will have more to say about the liability issue so far as those who design and construct buildings are concerned when we discuss the amendment tabled in my name which is inserted as a new section 20 in the Bill.

Is it being circulated?

I think so. We will deal with the matter there at the appropriate time.

I would like to respond briefly. I take the view that this particular subsection is an unacceptable blanket immunity to building control authorities. I do not accept that this has nothing to do with liability. If it has nothing to do with liability, this subsection would not be proposed for the Bill in the first place. It has all to do with liability. The building control authority, if they fail to fulfil their statutory duty, are liable for damage resulting from that failure affecting an individual in the context, in this instance, of a building which falls within the ambit of the building control regulations. The whole issue of immunity and the whole issue of liability are what this is about. I do not think the two can be separated. They are inextricably intertwined and, indeed, the Minister's amendment, No. 43, to section 20 reads:

A person shall not be entitled to bring any civil proceedings pursuant to this Act by reason only of the contravention of any provision of this Act, or of any order or regulation made thereunder.

That amendment is copperfastening a blanket immunity. In other words, we are giving building control authorities statutory duties but if they fall down on them, the general public have no recourse at all. I am pressing this amendment.

I have already expressed my view about Deputy Shatter's amendment but I am most unhappy with subsection (4) as it stands. In that respect, Deputy Shatter is quite right. That subsection allows local authorities to wash their hands of responsibility for the building control regulations. We were discussing amendment No. 14 in the context of this section and I did not hear the Minister make any observation on it. If the Minister were to accept amendment No. 14 or to give some indication that he was prepared to take it on board on Report Stage, it would go a long way towards setting down a method by which the local authorities could carry out a meaningful function in this whole area. I would like to hear what the Minister has to say about amendment No. 14. If subsection (4) is to remain as it is, it would be my intention to bring in an amendment on Report Stage.

It is important to say to Deputy Shatter that this is not blanket immunity. It only operates in so far as self-certification is concerned. That is the important point. When somebody lodges a certificate with the local authority we want to ensure that suddenly and automatically the local authority do not attract all kinds of duties and liabilities because of the lodging of that certificate. That is all that is involved so far as amendment No. 12 is concerned and it should be understood in that way.

In relation to amendment No. 14 to amendment No. 12 I should like to say to Deputy Gilmore that I find it slightly unusual to say the least. Local Government legislation generally confers power on local authorities on the basis that these bodies, as responsible public authorities, will use the powers properly and with due regard to the objectives of the legislative code in question. There is no requirement on the Garda Síochána, for example, to do random checks on motor vehicles to check tax but we know that such will be undertaken from time to time. Fire authorities are not required by any specific provision in the 1981 Act to satisfactorily monitor fire safety provisions but do so because of their general enforcement powers and responsibilities.

This Bill gives building control authorities inspectorial and enforcement powers which are to be used as the authority in question see fit and this is adequate. In any event, from a legal viewpoint, I consider it would be extremely difficult for a building control authority to decide how much had to be done to satisfactorily monitor effectiveness; some might consider it would require very extensive checking if they were to properly discharge the function. This would have implications for local authority staffing and could lead to the type of delays in the building industry that should be avoided. In all the circumstances, I cannot accept amendment No. 14.

I had hoped that we might have been able to finalise section 6 by 7 o'clock. I do not think that is realistic at this stage but we are very close to it. The Minister would be well advised to take on board the sentiment of the amendment in the names of Deputies Shatter and Gilmore. If the Minister is not disposed to amend in any way subsection (4) — as suggested in Deputy Shatter's amendment — it seems to me that with specific reference to self-certification, which is a new concept in terms of building control in Ireland, the local authority are not being required to carry any kind of responsibility whatsoever regarding self-certification. Section 6 is one that will empower the Minister to write regulations and it will be he, or his successors, who will determine the level of supervision or the amount of random inspection that can be prescribed.

Not necessarily.

It could very well be necessary. The Minister could decide in consultation with local authorities and with his own technical staff in the Department of the Environment what would be a reasonable amount of random checking and random selection.

The legislative framework attached to local authorities does not require building control authorities to do that and the Deputy knows that.

I know it does not require it but we are talking about the perception of the law where we are moving from a system where 40 per cent of seven local authorities monitor and issue approval certificates in the form of by-law approval for buildings to a situation where theoretically the entire system could be operated under a self-certification system. If the substance of subsection (4) were to stand, in the manner described by the Minister, without taking on board the amendment proposed by Deputy Shatter, we would be moving from one extreme position, relatively speaking, to another. I agree with Deputy Gilmore regarding the provisions of amendment No. 14 which state:

Building control authorities shall carry out such checks of certificates and documents lodged and work in progress and completed buildings, as they consider necessary to satisfactorily monitor the effectiveness of the control system in their area.

That is a perfectly reasonable provision to write in. If it is belt and braces according to the Minister and if that provision is already there it will do no harm to restate it. It would certainly reassure many people who are concerned that the local authorities will not be required explicitly, as distinct from implicitly, to take periodically 2 per cent or 3 per cent of all certificates lodged and to inspect them as to whether the design complies with the building regulations and to go to 2 per cent or 3 per cent of the sites with work in progress to ensure that the builders are constructing in accordance with the design. That is the essence of the section. It is a very reasonable amendment to write into the Bill. I cannot see what the Minister's objection is.

Except that I think it would involve local authorities in an endless litigious situation. How would they satisfactorily monitor effectiveness? Once you start interpreting that you immediately get into the court area.

Before we yield on this amendment I suggest that the Minister specify 2 per cent or 3 per cent. It would be for the Minister to indicate that in the regulations by way of circular letter. An examination of the drawings would clearly indicate whether they complied satisfactorily with the building regulations. That is happening at present in respect of the building by-laws. A building inspector could go out to a site and look at the quality of the foundations being poured or of the slab or the reinforcement. That is happening at present. I am simply asking that a provision of that nature be written in by the Minister in the regulations or as an adjunct to the regulations.

I cannot write a percentage into the building control regulations.

That is what the Minister is saying.

Does the Deputy not accept that local authorities in compliance with their statutory duties and the legislation they work under are——

They will not do it unless they are told to do it.

It is one thing to suggest what they should do but it is another to write it into legislation.

I am not suggesting percentages, it will be for the Minister in the regulations to indicate—

I will consider doing some of this.

We will have to take stock of the position.

Progress reported; Committee to sit again.
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