We resume on amendment No. 12 in the name of Deputy Shatter, which is an amendment to amendment No. 12 in the name of the Minister. I understand that Deputy Gilmore was in possession.
Building Control Bill, 1984: Committee Stage (Resumed).
The stage we had reached in this discussion was that the system of certification was to be effected by way of self certification. Section 6 (4) effectively absolves a local authority from any responsibility for ensuring that the building regulations are as certified.
The proposal contained in amendment No. 14 — which we were also discussing with amendment No. 12 — was that local authorities would carry out checks of certificates and documents and would monitor the effectiveness of the control system in their respective areas. That was to ensure that we avoided circumstances in which a certificate of compliance would simply be brought into a local authority, lodged or filed away there and that would be the end of the story. We wanted to avoid circumstances in which, if anything happened subsequently, the relevant local authority would not be accountable. If we do not have such a system of safeguard, the people concerned may have disappeared so that the owners of the building — be they householders, business people or whoever — would then have no redress.
I was disappointed to hear the Minister talk in negative terms about amendment No. 14 in the names of Deputy Shatter and myself. We had a discussion about it prior to Private Members' time. In the interval I was hoping the Minister might have had an opportunity of reflecting on what had been said and would be in a position to respond more positvely to that amendment now.
Before the Minister responds I want to make three points. I presume the Minister has availed of Private Members' time to check out some of the points raised prior to our resumption.
I want to add two additional points. First, I too have consulted with some people who are here who have the broadest possible spectrum of representation — the Institute of Engineers, the Institute of Architects and people working in local authorities. I should like to place on the record that there is broad agreement among them in regard to the validity of the amendment in the names of Deputies Gilmore and Shatter, on the basis that its provisions meet all of the concerns expressed. As evidence of the unanimity expressed, they have cited the fact that such certificates as have been lodged with the major local authorities in Dublin and Cork in respect of the Multi-Storey Dwellings Act might well be in Chinese, or constitute extracts from the Koran as far as local authorities' officials are concerned; they are not being scrutinised in any shape or form.
Having regard to general human frailty — of which the Minister will be aware— as will any of us who has cousins in the United States — I should point out that the IRS in the United States probably is more feared than a combination of the CIA and the FBI by the ordinary American citizen. In the United States self-certification obtains in respect of taxation — they do not have a PAYE system — with each individual having to fill up their personal taxation return form and do so with scrupulous regard to accuracy. I invite Members to put themselves in the position of a professional on the design side or a reputable builder on the construction side, having to adhere to the requirements of the building regulations — which is what the provisions of this Bill require. They would do well to remember that less than 1 per cent of federal income tax returns, self-certified, are scrutinised by the IRS. The minority are scrutinised with rigorous precision and attention to detail. This encourages the 99.9 per cent of people who are never investigated to adhere rigorously to the requirements of accuracy and truthfulness. A professional designer or reputable builder who knows that his package of documentation lodged with the local authority may be subject to detailed scrutiny will be very concerned about its accuracy.
The wording of the amendment in the names of Deputy Shatter and Deputy Gilmore may not be entirely acceptable to the Minister but this wording will simply reinforce regulations which the Minister will have to draft anyway. He has some room for legal manoeuvre. I would urge the amendment on the Minister because I do not see it as illegal in any manifest way. However, if it appears so to him, then let him remove the illegalities and bring in an amendment on Report Stage which is the same in essence.
I am anxious not to repeat what we said earlier, Amendment No. 14 in my name and that of Deputy Gilmore seeks to give some substance to the certification process. It became popular in a recent American election for one candidate to ask "Where is the meat?". Here is the meat of the certification procedure. This provision for carrying out checks will mean that instead of lodging the certificate, which in some areas will be seen as a meaningless formality, people will know there is a risk that if the certificate is inaccurate checking procedures will find it out. This is a serious amendment which has general support.
Amendment No. 12 gives a right of recourse in circumstances where the local authority, acting as the building control authority, have not done their job. There is a linkage between the two. There is little point in conferring powers to monitor and carry out spot checks if an authority, to save money or for other reasons, decide not to carry out such checks and do not do their job properly. There is a linkage between amendment No. 12, under which the local authority have a liability in the circumstances detailed in the subsection it seeks to amend, and the express obligation to carry out checks of certificates and documents, work in progress and completed buildings. I would hope that the Minister would take a somewhat different approach from that he took earlier.
I considered the matter during the recess and I want to be as helpful as possible. I would say to Deputy Quinn that I do not think I have any greater reliance on the professionalism or the reliability of certifiers and those who would be issuing and submitting certificates of compliance than he would. We are not at cross purposes there. I have a very high regard for the level of professionalism in the disciplines we are talking about who would be involved in certification. There is some implication in what has been said that people less worthy than those whom we would expect to be dealing with these certificates of compliance might be seeking to get around the regulations. I do not think that is the case.
There are cowboys everywhere.
Yes, but in very small numbers.
People may make mistakes.
The possibility of human error is always there. We as a people do not regard ourselves as being tolerent of shoddy workmanship and people who are unreliable. We have a very good record in regard to our professionalism in these disciplines, both at home and internationally. I would not like any impression to be given that there are people seeking to do other than what is proper in this area. There is nothing in section 6 or anywhere in the Bill which would prohibit a building control authority from carrying out inspections of a certain percentage of the buildings which they would consider appropriate. They would, however, be expected to discharge in a reasonable way the responsibilities which inevitably come with the powers conferred by this Bill. I do not accept that the phrase suggested would add to this responsibility in any meaningful way and I regret that Deputies are persisting with the amendment. It is superfluous and certainly out of line with other legislative codes for which I as Minister for the Environment am responsible.
There are other reasons for opposing the amendment. I have pointed out more than once that the persons actually involved in the construction process are those whom I regard as primarily responsible for the design and construction of a building. The role of the State, discharged in this instance by the building control authority, is very much subsidiary to that carried by designers and builders. That principle must be enshrined and understood clearly. This is the philosophy underlying the Bill and I would be very reluctant to amend it in any way which could be considered as altering that general principle. The amendment we are debating would tend to do that and could also, wittingly or unwittingly, impose a burden of liability on local authorities which would be unfair and contrary to the public interest. Do we wish to drag in that type of duty and responsibility for local authorities?
I thought the Minister said liability did not arise.
No, it does not. It stands on its own. The whole thrust of the amendment has been to drag in local authorities to do things other than they should do. Consequent on that is the liability. I do not think that was ever intended and it certainly would be contrary to the legislative framework that exists in so far as the performing of responsibility of local authorities at present is concerned. What would happen if someone was to argue that a particular building defect was attributable to a breakdown, however isolated, of the control system? Would the building control authority then be responsible and liable for making good any damage——
——even though the defect was clearly due to the fault or oversight of the builder or the designer? The advice given to me is that that is the position that this amendment would create. I feel duty bound to oppose the amendment which could have that effect. If that is the effect and if the indication I get from Deputy Quinn is that he does not wish that to be the case, then he must take the advice tendered that that would be the result of the amendment as put down by Deputy Shatter and Deputy Gilmore. Consequently I have to let it stand at that.
I am extremely disappointed with the Minister's response. Those of us who spoke from the Opposition benches have attempted to be very reasonable in setting out our case. We are almost at the end of the debate on section 6 of the Bill. If we are left with a situation where all that is going to happen is that a certificate is going to be submitted to the local authority, stuck in a file——
That is not so.
That is exactly what the Bill now provides for. The local authority will have no obligation or responsibility to see to it that the regulations are being complied with. The Minister can say that the local authorities are free to check the document that has been submitted and to carry out whatever inspections they may wish to carry out. Local authorities are trying to carry out functions under a whole myriad of legislation, dating right back to the last century. I think the local authorities have responsibility under more legislation than any other public authority in the State. Here they are trying to carry out a whole range of functions. They are not, in reality, going to carry out the checks, inspections and so on that are necessary unless they are required to do so under the Bill. I am certainly not happy with the position whereby we would end up here with a system of self certification, with no responsibility given to the local authority.
The Minister outlined the philosophy underlying this. Having regard to what I read on the last debate on this issue — I do not want to get into a philosophical argument — it seems that the Minister is enunciating some kind of extreme Reaganite philosophy in this, that none of the State agencies will have involvement, that we are going to let it all happen and the local authority will simply be a receptacle for the certificates when they are submitted. In those circumstances, I wish to press amendment No. 14.
I presume we are dealing with amendment No. 12, Deputy Shatter's amendment.
We took both Nos. 12 and 14 together and I am pressing amendment No. 12.
Amendment No. 14 to amendment No. 12.
I thought we were dealing with amendment No. 12 in the name of Deputy Shatter.
Yes, we are dealing with amendments Nos. 12 and 14 and I presume we have to take No. 12 first.
- 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.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Lyons, Denis.
- Martin, Micheál.
- 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.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Bruton, John.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Currie, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Finnucane, Michael.
- Flaherty, Mary.
- Flanagan, Charles.
- Gilmore, Eamon.
- Gregory, Tony.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Lee, Pat.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Moynihan, Michael.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Quinn, Ruairí.
- Reynolds, Gerry.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
- Yates, Ivan.
I move amendment No. 13 to amendment No. 12:
After subsection (6), to insert the following subsection:
"(7) Persons or classes of persons submitting certificates of compliance shall submit to the building control authority evidence that they hold professional indemnity insurance appropriate to the building being certified.".
This amendment arises from the decision today to introduce a system of self-certification. In other countries, where systems of self-certification apply, there is a legal requirement that the certifiers should have insurance cover. This amendment seeks to require those submitting certificates of compliance to produce to local authorities evidence that they have professional indemnity insurance in order to ensure that any of the subsequent owners of buildings will have some come-back should anything go wrong. This is a fairly standard procedure in other countries where self-certification applies.
The Bill is concerned with building regulations and the means by which these regulations can be implemented. It has nothing to do with insurance or insurance related issues such as liability. It would, therefore, be wholly inappropriate to introduce such extraneous concepts into it. This does not mean that persons who are not competent will be designated as certifiers. I should like to remind the House that I am taking power in subsection (2) (c) of this section to designate the persons or classes of persons by whom certificates of compliance may be given. I will ensure that only those persons who can adequately perform this certification function will be allowed to do so.
As I have already indicated, I will be asking the building regulations advisory body to advise in this regard.
I think I am about to be hit by a feeling of political depression. When we were dealing with the Derelict Sites Bill the Minister constructively took on board amendments proposed by this side of the House. The most depressing response we have had so far this evening was the last one from the Minister. It is very much back into the realm of, "Come on lads, give me a reason why I cannot go along with this amendment". The Minister's back-up officials have provided him with the reason. In the last division the Minister voted against the idea that local authorities should in any way be responsible for anything they might do in this area. Now we have local authorities who may or may not, on their own initiative, monitor some of the works that are being carried out to check that they comply with the regulations. They will accept certificates, and can do so unquestioningly, because it does not matter a damn whether they question their validity or not because they have no great liability in regard to them. The Minister has told us that the certifiers are full of integrity and they are the people who have to get everything right.
People who work in the different professions believe that those involved are full of integrity. Those of us who are members of different professions try to work with a great deal of integrity and confidence but, unfortunately, on occasions we all come across people who do not have integrity. Occasionally, surprise, surprise, we come across people who lack a great deal of competence. That is one of the reasons why solicitors are required by the Incorporated Law Society to have professional indemnity insurance. If, for example, they make off with their client's funds, or behave in a negligent way, they are insured. The person who is damaged by their actions has recourse. Even if the solicitor disappears they may have recourse.
I appreciate that the building regulations will provide for the certification of different people, be they individuals, persons or, as the Bill refers to, classes of persons able to certify. What happens if the person certifying is a man or woman of straw? What happens if they are in "hock" up to their kneecaps, if the house they are living in is mortgaged or of little capital value? What happens is they do not have any real assets or, if they have them, they are not in this jurisdiction? What use is a certificate to a person who has moved into a building that collapses into the street or which is seriously defective?
It is not good enough for the Minister to come back with the rather silly response that the legislation does not have anything to do with insurance. I would have expected, if the Minister was to produce a reason why the amendment should not be accepted, that it would be a reason of more substance than the one he offered. I do not with to bring any acrimony into a debate which, despite the technicalities, the difficulties we are dealing with and the differences of views, has lacked acrimony, but at 9.50 p.m., having started the debate at 4 p.m., some of us are entitled to be a little outraged at the rather foolish repsonse from the Minister. I do not mean that in a personal way but in the sense of the advice that the Minister was given.
The Deputy means it exactly as it sounds and we all know that.
I cannot understand why it should be objectionable to require of the people who are providing certificates that they should hold professional indemnity insurance. It is incomprehensible. If I was a good professional in some of the professions affected by this I would have such insurance.
The problem concerns the individuals who will not go to the expense of obtaining insurance cover. The responsible people who get their certification right all the time will have insurance cover but the irresponsible person, the person who has problems operating in the area of his or her profession of certifying, will make a mess of it and will not have insurance cover. It is possible that those people will not be in a position legally to compensate those who are detrimentally affected by their incompetence in dealing with the certification procedure.
It seems that the intent is to put in place a Building Control Bill which lacks any real means of come back for a consumer who looks to it for protection. I can understand the Minister wanting to protect local authorities from large claims arising out of their failure to operate the Bill properly although I think he is wrong. As a matter of principle, he may want to take the view that it should always be the certifier who is the responsible person and in no circumstances should local authorities be held liable. That is wrong as the fact that one could be held liable will make a public body operate more effectively and efficiently than they would if they had a general immunity.
It would not be a matter for them but rather for the builder and designer.
The rebellion in Eastern Europe is taking place because the populations of those countries have long since lost their confidence in any of their public bodies to carry out any of their functions properly. All of their public bodies were immune from any recourse by the ordinary citizen when they proved to be incompetent in what they were doing. If the response is that it would be the builder, the surveyor and the architect against whom one would have recourse, surely there should be substantial certainty in knowing that one would have recourse against the person who certified that what had been built complied with the regulations. The only way there can be such certainty is by making it a requirement that the person designated as being able to certify should have professional indemnity insurance.
I am sorry the Minister responded to this proposal by simply saying that this legislation has nothing to do with insurance. When a new solicitor's Bill is brought before this House and Deputies on all sides speak about the need for professional indemnity insurance to ensure that clients who are badly treated have recourse, I do not expect the Minister for Justice to stand up and say that professional indemnity insurance has nothing to do with that either. If he does he will be laughed out of the House.
I find it extraordinary that the Deputy should introduce the question of that other discipline, the solicitors, into this debate. I think the Deputy is skating on rather thin ice in that regard. He should not pursue it. It is my understanding that the Deputy has been trying to put a smokescreen across this legislation in this regard ever since the first vote this evening. Be that as it may, the approved certifiers could be disqualified from submitting certificates through the vehicle outlined in section 16 (7). I think this would be adequate to deal with the matter in so far as getting certifiers to agree to do the job in a proper fashion is concerned.
The Minister's knee jerk reaction to every amendment which has been proposed here today, and we have been discussing this Bill for quite a long time, is leading me to wonder if he is serious about getting this Bill through the House. Certainly, we on this side have indicated very clearly our willingness to co-operate and to be positive——
The Deputy must be joking.
There is a distinction to be drawn——
The Deputy and his party have prevented this Bill from becoming law during the past two sessions.
I and my party will not apologise for tabling amendments to this Bill if we think it is weak or defective.
The delay was not because amendments were tabled on the last occasion but because there was filibustering.
That is what we are here to do. If we were——
Deputy Gilmore on amendment No. 13.
If the Minister was prepared to consider some of the amendments we are proposing we could make a lot of progress. The way I see it, this Bill seeks to protect the consumer. What is the consumer left with to protect himself or herself? They are left with the certifier, the builder, the architect, the surveyor or whoever was responsible for the building in the first place. There would be no third party certification and no responsibility would be placed on local authorities. Now we find there would be no requirement on the certifier to have insurance. Where then would the consumer, the house buyer, turn to if something were to go wrong? This section is being frittered away, the building regulations to be made under it will be meaningless and worthless. I very much regret this. If the Minister is prepared to give some consideration to the need to provide some protection and is prepared to come back on Report Stage with something of his own if he is not happy with the amendment, I will not press the amendment.
Let me make one final comment on this. It might be interpreted that the Minister is being unreasonable in this matter. If the certifier is negligent the owner of the building stands to lose a lot. He is the one who will be hurt. If the building has to be changed, improved or even knocked down it is the owner of the building who is going to suffer the loss. I see it in a slightly different way. In those circumstances it is incumbent on the owner to ensure that he has a certifier of competence and good character. The owner, who is the one person likely to suffer any loss would always have the opportunity to ask his certifier if he was indemnified.
Suppose the owner is not the builder?
The argument can be reversed. Why should we deem the local authority to be the ones to suffer liability or why should it be seen that it is the local authority who are seeking the certificate of indemnification? If I were the owner, the employer and the one putting up the hard cash for a job I would have a quality architect and engineer. If I were to ask him for a certificate of compliance I could easily say to him that I want his certificate of indemnification and if he cannot give it to me I will not take the risk with him. I like to see it that way and that is doing it in a much more even handed way in so far as local authorities are concerned.
Suppose there was a rogue builder and architect, that the certificate of compliance does not hold up and the defect in the building does not emerge until I happen to buy it, what comeback would I have?
I cannot for the life of me understand the Deputy's preoccupation with rogue builders, certifiers and architects.
I come across a lot of them.
In fact earlier today there was a strong indication that the Deputy regarded a lot of work done in the building trade as being shoddy.
Some of it.
I have been trying to defend workmen as being quality people. We have a very active and thriving building industry in this city. We are regarded throughout Europe as probably having the most dynamic construction industry in any city in Europe at this time. Work of the highest quality is being done by workmen and tradesmen. I fail to see why the Deputy persistently tries to reflect——
Answer the question.
——on people whom, ostensibly, in other places he says he represents.
Answer the question.
We might try to confine ourselves to the amendment. It is now 10 p.m. and we have been here longer than we intended. Two things need to be said. First, what the Minister says is correct. What we are arguing for and the essence of the amendment could be taken on board and made part of the regulations. It could be made part of the regulations. It may very well be a recommendation that will come from the body which the Minister will set up to certify the certifiers. That may require that evidence of professional indemnity insurance for some categories of buildings would be required. We have no undertaking that the BAC will do that and the amendment does not make it mandatory. The Minister will write regulations having regard to this.
There is some room for manoeuvre. The whole essence is, how does one guard the guardians? I would draw the Minister's attention to the Cremer and Warner report which said in relation to the future of multi-storey buildings in report No. 87024:
CWL recommend that the Government seek to enact legislation which requires all future multi-storey buildings to be designed to prevent both progressive (and disproportionate) collapse. Local Authorities should be provided with the resources to monitor any self-certification system that new legislation may introduce, and be able to check, more fully, construction of new buildings, thereby providing a deterrent against inferior building practices.
That is it in a nutshell — a deterrent against inferior building practices. We are not trying to crucify the local authorities. I know that senior officials are running around the Custom House telling the Minister not to let this section go through or else there would be a string of exposed local authorities who are not getting enough money as it is and there will be a whole pack of cards that might fall and that whatever else the Minister concedes, he should not concede on this. I can understand how that could be a worry, but that is not what we are about. We are about getting a balance between consumer protection and maintaining a high standard of construction across the country, and not just in the seven areas where in Dublin city we have a vibrant industry at the moment, all subject to building control. I would hate to think what sort of cowboys would be in the city centre at the moment if we had the sort of self-certification system the Minister is talking about without the minimum deterrent we are looking for.
The Minister should seriously consider introducing an amendment on Report Stage. We will certainly do some more work on this and it is my intention to try to put down an agreed amendment for Report Stage to take on board some of the concerns that are being expressed. Deputy Shatter, Deputy Gilmore and I seldom agree, and certainly our parties do not always agree, but on this issue there is unanimity from this side of the House and that sort of unanimity should be taken on board.
Deputy Quinn is an experienced parliamentarian accustomed to and versatile at using the ploy of Opposition unanimity in trying to move the Minister. The Deputy has done this not always successfully but reasonably successfully on other occasions. When the Deputy talks about unanimity on the other side of the House, that is not an indication of propriety in any sense of the word. The Deputy has it wrong on this occasion in trying to offload the responsibility from where it should properly be. If Deputy Gilmore buys a building without having put in place some checks and without having carried out checks on the person whom he regards as confident and from whom he is asking a certificate of compliance, then he is the one who is being negligent in protecting his own investment. In fact Deputy Shatter made that point for me earlier today. The Deputy strongly represented that point of view in another set of circumstances. The Deputies should take note of what Deputy Shatter says about people doing their own thing properly in their own best interests.
The House might agree that we have exhausted any worthwhile contribution on this amendment.
The argument the Minister is giving why we do not need a certification procedure, why the individual should go out and employ a suitably competent person and why, if one does not employ that person it is one's own fault, is an argument that could be used to say that we do not need this legislation at all and is a way of asking if everyone out there is going to employ someone of great stature and competence who will always ensure that the best possible materials are used, that all eventualities are considered, that proper provision is taken to ensure that in the event of fire, protections are in place and that appropriate materials are used to make sure that in the event of fire——
Sorry, Deputy Shatter you will have an opportunity when I am putting the section.
The Deputy is confusing regulations with control.
Deputy Shatter will have an opportunity when discussing the section. Let us try to dispose of amendment No. 13.
In the context of amendment No. 13, based on that argument, we do not need these regulations at all. If one recognises the need and if the certifier is the person who will be the pinnacle of the procedure, then the certifier needs to be in the position where there is professional indemnity insurance. Deputy Quinn made reference to the report of the task force on multi-storey buildings. That report on page 32 says:
It is recognised that implementation of Building Regulations is of little value unless they can be effectively enforced. ... However, the effectiveness of the system is dependent on a high level of technical competence and professional responsibility among those certifying and would need a high degree of policing to support certifiers in carrying out their duties diligently.
Apparently we will not have the high degree of policing because the Minister will not accept amendment No. 14 and we will not have the enforcement assured because we will not have indemnity insurance. Rather than having to press this amendment this evening, will the Minister tell the House he is willing to go back to the Department and discuss the issue of professional indemnity insurance with a view to coming back on Report Stage to indicate that he is either willing to table an amendment to deal with it or that it is a matter that will be addressed in the regulations?
I do not want to mislead Deputies, but that is fine if that will satisfy Deputies and we can all go on to the next amendment. I am quite happy to think about any amendment again but I do not want to mislead the House by indicating that I will bring in an amendment to satisfy the Deputies on Report Stage. I will look at it. I would hope that there would be reciprocity attached to this and that the Deputies might reflect on some of the points I made both on section 16 (7) and on the question as to where we really want the liability to rest.
That is fair enough.
I believe it should rest in an entirely different area, and I do not want any section of this legislation to somehow ease the liability and responsibility away from where it should properly reside, and that is with the builders and the owners.
We should all go off and reflect.
In that new mood I get the impression that amendment No. 13 is not being pressed.
I move amendment No. 13:
In page 9, before section 7, to insert the following new section:
7.—(1) An applicant who is dissatisfied with the decision of a building control authority on an application pursuant to—
(a) section 4, for a dispensation from, or relaxation of, any requirement of building regulations, or
(b) section 6 (2) (a) (ii), for a fire safety certificate, or
(c) section 6 (2) (a) (iii), for a certificate of approval, may appeal to An Bord Pleanála.
(2) An Bord Pleanála, after consideration of an appeal under this section, shall either (as it thinks proper) refuse the appeal or allow the appeal subject, where it thinks fit, to the attachment, amendment or deletion of conditions.
(3) The Minister may, by regulations, specify—
(a) the manner in which an appeal is to be made pursuant to this section.
(b) the time within which such appeals may be made,
(c) the charging of fees for making such appeals,
(d) the procedure to be adopted on such appeals,
(e) such incidental, supplementary, consequential and transitional provisions (including modification or application of any provision of this Act or of the Local Government (Planning and Development) Acts, 1963 to 1983) as appear to the Minister to be necessary for the purposes of this section.
This is a new section which is being inserted to provide for the making of appeals to An Bord Pleanála where an applicant is not satisfied with the decision of the building control authority on an application relating to a fire safety certificate, to a certificate of approval or to a dispensation or a relaxation of certain provisions of building regulations. The Bill as initiated did not provide for the making of appeals to An Bord Pleanála and the inclusion of a provision along these lines was strongly advocated by the building industry during consultations on the Bill. It shows how available the Minister is to listen to good advice on these matters. The view put forward was that not alone should a right of appeal exist on the grounds of natural justice but in the interests of consistency appeals should be heard by a centralised body which would be competent to adjudicate on the issues arising. I accept the arguments and I am convinced that the use of An Bord Pleanála as the appropriate body will ensure that appeals will be properly and consistently determined. I recommend that new section to the House.
Many of us are aware of the difficulties with An Bord Pleanála in the context of processing appeals. Will additional personnel be made available to An Bord Pleanála to deal with appeals under this provision?
We do not want to raise that. All I want to say is that An Bord Pleanála had not been denied any extra staff requested by them. Several consultants have been consulted in the recent past and some more are to be appointed together with some extra clerical staff which they are in the process of employing at the moment. It is my intention to make sure that An Bord Pleanála work as efficiently as possible and the staff have to be provided for that purpose.
We now come to amendment No. 14 in the name of the Minister. Amendments Nos. 26, 29 and 30 are related and can be discussed together, with the agreement of the House.
I move amendment No. 14:
In page 9, subsection (1) (a), line 47, after "completed" to insert "or any material change takes place in the purposes for which any building is used".
This amendment is necessary to enable an enforcement notice to be served by a building control authority where it is satisfied following a material change in the purposes for which a building is used, that the building regulations have not been complied with. The regulations themselves will, of course, limit the application of the "change of use" concept to the particular circumstances where it is warranted.
I move amendment No. 15:
In page 10, between lines 8 and 9, to insert the following subsection:
"(2) An enforcement notice shall not be served, in respect of the building or works concerned, after the expiration of the period of five years commencing on the date of—
(a) the completion of the building or the works, or
(b) the material change in the purposes for which the building is used".
This amendment is being inserted in the interest of avoiding delays and difficulties in the conveyancing of certain buildings. It has the effect of ensuring that an enforcement notice cannot be served later than five years from the date of completion or material change of use of the building to which it relates and should obviate any perceived need by the legal profession to seek a certificate from vendors in respect of the buildings. Essentially the amendment is included for the convenience of all parties in transacting property. It has been discussed with the Incorporated Law Society. They agree with it and I am anxious to have it.
I move amendment No. 16:
In page 10, subsection (3), line 17, after "compliance" to insert ", subject to any dispensation or relaxation already granted under section 4 or 5 or to any appeal under section 7 which has been allowed,".
This amendment is being inserted to ensure that enforcement notices will not require action to be taken when the requirement in question has previously been waived on foot of a relaxation or dispensation already granted under section 4, section 5 or section 7. Similar amendments have been inserted in sections 3 and 6.
I move amendment No. 17:
In page 10, lines 36 to 44, to delete subsection (5).
The effect of this amendment is to delete subsection (5). There are two reasons for this, the first being that I consider it is superfluous because of the wording in subsection (6). Subsection (6) requires appropriate compliance with the terms of an enforcement notice and goes on to indicate when the notice will take effect in the different circumstances which may arise. Subsection (5) also deals with when a notice will take effect where an appeal is lodged, but this also is provided for in subsection (6). More importantly, subsection (5) as it stands in the Bill as initiated could serve to give effect to an enforcement notice irrespective of a decision of the District Court to annul it. This is clearly unacceptable and in the circumstances I have outlined I propose to delete that subsection.
Amendment No. 18 in the name of the Minister is consequential on amendment No. 22 so they can be discussed together.
I move amendment No. 18:
In page 10, lines 45 to 47, and in page 11, lines 1 to 14, to delete subsection (6) and substitute the following:
"(6) A person on whom an enforcement notice has been served pursuant to this section shall—
(a) if he does not apply to the District Court pursuant to section 8, comply with the terms of the notice within the period specified therein.
(b) if he applies to the District Court pursuant to section 8, and the notice is confirmed by the District Court either unconditionally or subject to modifications, alterations or additions, comply with the terms of notice, or the notice as modified, altered or added to by the District Court, as the case may be, within the period specified in the notice, the period beginning on the date of the determination of the application to the District Court,
(c) if he applies to the District Court pursuant to section 8, and withdraws such application, comply with the terms of the notice within the period specified in the notice, the period beginning on the date of the withdrawal of the application.".
This is a consequential amendment following the insertion of a new section 8. It provides that the word "appeal" will be replaced by "application".
I move amendment No. 19:
In page 11, lines 15 and 16, to delete subsection (7).
In view of the manner in which section 15 is drafted — that it is an offence to contravene a provision of the Bill — I am now advised that subsection (7) is superfluous. I propose, therefore, to delete it.
I move amendment No. 20:
In page 11, lines 17 to 20, to delete subsection (8) and substitute the following:
"(8) Where a person fails to comply with the requirements of subsection (6), the building control authority may enter into any building or works to which the enforcement notice relates, and may enter any land necessary for that purpose, and therein take any action or do anything required by the notice.".
This amendment provides that the building control authority can enter into land as well as buildings for the purposes of subsection (6). I consider it advisable to insert this amendment to preclude the possibility of the authority being denied access to a building by virtue of not being able to cross land to gain entrance.
A typographical error is also being corrected —"persons" in line 17 is being changed to "person". A reference to "works" is also being inserted after building in line 18.
I move amendment No. 21:
In page 11, subsection (9), lines 22 and 23, to delete "enters into a building to which an enforcement notice relates and therein takes any action or does anything" and substitute "enters into any building or works to which the enforcement notice relates and takes any action or does anything in relation thereto".
This amendment inserts a reference to "works" after building and this is consistent with the previous amendment. In addition, the word "therein" is being replaced with "in relation thereto" and this broadens the scope of the actions for which the building control authority may recover costs. Costs will now be recoverable even if the actions must occur outside, rather than inside, the building or works concerned.
I move amendment No. 22:
In page 11, before section 8, to insert the following new section:
"8.—(1) A person on whom an enforcement notice is served may, within fourteen days of the service of the notice, apply to the District Court to annul, modify or alter the notice on all or any of the following grounds—
(a) that the alleged failure to comply with the requirements of building regulations is not such as would warrant the service of an enforcement notice;
(b) that compliance with the terms of the enforcement notice would occasion unreasonable expense;
(c) that the time allowed by the building control authority for compliance with the notice is unreasonably short;
(d) that the appellant is not the person on whom the notice should have been served;
(e) that the design or the building complies with the requirements of the building regulations.
(2) Notice of an application pursuant to subsection (1) shall be served on the building control authority concerned and that authority shall be entitled to appear, be heard and adduce evidence at the hearing of the application.
(3) On the hearing of an application pursuant to this section, the court may, as it thinks proper—
(a) confirm the enforcement notice, or
(b) confirm the enforcement notice subject to such modifications, alterations or additions as the court thinks reasonable, or
(c) annul the enforcement notice.
(4) The jurisdiction conferred on the District Court under this section shall be exercised by the Justice of that Court having jurisdiction in the area where the building or works concerned are situated.".
This section sets out the procedure by which a person may apply to the District Court to have an enforcement notice annulled, modified or altered, the grounds on which it may be done and the powers of the court.
The section is being substituted in its entirety for two reasons. The first is to provide that simple compliance with building regulations will in itself be grounds for an application to the District Court. This provision is now included at subsection (1) (e).
My other reason for introducing this amendment is that I consider the impact of these decisions can be of general interest because of the national importance of building regulations. It is desirable, therefore, that there should be a degree of standardisation in such decisions and I believe this can be best achieved by allowing an appeal to the Circuit Court from a District Court decision. The section as now drafted will allow for such appeals.
I move amendment No. 23:
In page 12, subsection (3), line 36, to delete "1982" and substitute "1986".
This technical amendment is required because a further Companies Act has been passed in 1986 and the reference in the Bill to the Companies Act, 1963 to 1982 is, therefore, out of date.
I move amendment No. 24:
In page 13, subsection (1), line 2, to delete "section" and substitute "Act".
I am advised by the parliamentary draftsman that it would be more appropriate and in keeping with the definition section, section 1 for the "authorised person" to be authorised for the purposes of the whole Act rather than for section 10 alone. This amendment is also consistent with the reference in subsection (2) line 6 to "Act".
I move amendment No. 25:
In page 13, subsection (1), line 2, after "authority" to insert "or by the Minister, or by An Bord Pleanála, as the case may be".
The amendment is required in view of the appellate functions which are being given to An Bord Pleanála by the new section 7, and the powers given to the Minister by section 12 in relation to prohibition of certain materials, etc. The effect of the amendment is to provide that the power to designate an authorised person is not confined to a building control authority and extends to the Minister and An Bord Pleanála also.
I move amendment No. 26:
In page 13, subsection (3), lines 9 to 13, to delete paragraph (a) and substitute the following:
"(a) inspect any building—
(i) following its completion, or
(ii) during its construction, alteration or extension, or
(iii) during the installation therein of any fittings, services or equipment to which building regulations apply, or
(iv) in respect of which any material change takes place in the purposes for which such building is used;".
I move amendment No. 27:
In page 13, subsection (3), between lines 25 and 26, to insert the following paragraph:
"(c) require the owner or occupier of the building, or any person responsible for the construction of the building, to provide such plans, documents and information as are necessary to establish whether the requirements of building regulations are being complied with in relation to the building;”.
This amendment enables an authorised person, an officer of a building control authority, to require to be provided with such plans, documents or information as are necessary to establish whether the building regulations are being complied with in a particular case. This is a necessary and self-explanatory provision which in my view could usefully have been included in the Bill as initiated. I wish to inform the House that I am advised that only such documents as are necessary to establish compliance can be required and that the use of this power could, in certain circumstances, obviate the need for more far-reaching measures of the kind envisaged in the following paragraph — (3) (c) in the Bill as initiated.
I move amendment No. 28:
In page 14, subsection (1), line 10, to delete "or has been" and substitute "or has been,".
This is a drafting amendment the effect of which is to insert a comma after the word "been" on line 10.
I move amendment No. 29:
In page 14, subsection (1), line 10, after "completed" to insert "or any material change takes place in the purposes for which a building is used".
The effect of this amendment is to provide that a High Court order can be sought by a building control authority if a material change of use occurs in the purposes for which a building is used and if, in the opinion of the authority, such change of use gives rise to a serious risk to the persons who use or may use the building. The thinking underlying this amendment is similar to other amendments which I have moved in respect of a number of previous sections, including sections 3 and 7.
I move amendment No. 30:
In page 14, subsection (1), line 12, after "construction" to insert "or change of use".
This is the last of a series of amendments which provide that certain powers and provisions apply in the event of a material change of use in the building. Subsection 11 (1) is being amended to provide accordingly in relation to the ability of a building control authority to seek High Court orders in places of particular danger and urgency.
Amendment No. 31 in the name of Deputy Gilmore. Amendments Nos. 32, 34, 35 and 36 are cognate and amendment No. 33 is related. With the agreement of the House amendments Nos. 31 to 36, inclusive, may be taken together for discussion. Agreed.
I move amendment No. 31:
In page 14, subsection (1), lines 46 and 47, to delete "Building Regulations Advisory Body" and substitute "Building Control Advisory Body".
The Minister a short time ago drew our attention to the distinction between building regulations and building control and the advisory body he is proposing to set up, as I read section 13, confine themselves to advising him on the building regulations. It would be desirable to have a body who would deal not only with building regulations but also with the whole area of building control. In view of the lengthy debate we had on section 6 which was essentially about the question of control, an advisory body whose terms of reference are wider than dealing just with the technical matters of building regulations and drawing on the many professional organisations, local authorities and various bodies who are involved in this whole area would be desirable and I hope the Minister takes it on board.
As I understand it, this section, as drafted is adequate for what the Deputy wants. I have informed the House, and it is on the record that I intend to ask the body to advise on building regulations and on the control system. That I will do. There is no difficulty whatsoever in achieving that with the existing wording. I am advised that is adequate to deal with what he wants. It is what is going to happen anyway.
An bhfuil tú sásta?
Not entirely. I would not be happy unless it was built into the legislation. There is a difference between a commitment here from the Minister and having it in the legislation. However, I will not press the amendment just now. We will leave it until Report Stage.
I think the Deputy's colleague will advise him that once the Minister says he is going to ask this body to do that thing, it will happen.
I am long enough here to know statements made by Ministers in the House do not necessarily end up being acted on. However, I will not enter into a big debate on it.
It would be foolish for the Minister not to.
Let me suggest that the Minister consider on Report Stage renaming them "The Building Regulations Control and Advisory Body". What is in a name?
Yes. There is no problem about that.
Amendment, by leave, withdrawm.
I move amendment No. 37:
In page 15, line 31, to delete "any regulation or notice" and substitute "any order, regulation or notice".
This is a technical amendment the effect of which is to include contravention of an order as one of the offences constituted by this section. The Deputies will be aware that in section 12 I am taking power, by order, to prohibit in certain circumstances the use of materials and other items which I consider to be a danger to public health and safety.
I move amendment No. 38:
In page 16, lines 33 to 41, to delete subsection (7) and substitute the following:
"(7) Any person who is convicted of an offence under this Act may, at the discretion of the court, be disqualified from signing and submitting certificates of compliance with building regulations for a period—
(a) not exceeding two years from the date of conviction, if the offence is an offence to which subsection (1) or (2) (a) applies, or
(b) not exceeding ten years from the date of conviction, if the offence is an offence to which subsection (2) (b) applies,
and, accordingly, a building control authority shall not accept certificates for registration which are signed by a person while so disqualified.".
The purpose of this amendment is to make the disqualification of approved certifiers from signing and submitting certificates of compliance subject to the discretion of the court and not mandatory as in the Bill at present. There are various levels of gravity that would apply to either summary or indictable offences and it is considered appropriate that it should be open to the courts to decide the length of time, if any, for which an approved certifier should be disqualified. A building control authority may not accept certificates which are signed by a disqualified person during the period of disqualification. That is the matter I referred to earlier.
Amendment No. 39 in the name of Deputy Gilmore. Amendment No. 40 is related. Amendments Nos. 39 and 40 may be taken together for discussion. Agreed.
I move amendment No. 39:
In page 16, subsection (2), line 44, after "made under" to insert "section 3,".
We can deal with amendment No. 39 if the Minister can clarify that the regulations which are made under section 3 will be laid before the House.
There might be a little confusion there. The amendment proposed refers to orders made under section 3. There are no orders arising under this section which is the enabling section for making building regulations. If the Deputy's intention is that building regulations should be capable of being annulled by resolution of either House of the Oireachtas, I would point out that section 17(2) provides for that.
I move amendment No. 40:
In page 16, subsection (2), line 44, to delete "or 22".
This is a technical amendment.
Amendment No. 41 is in the name of Deputy Gilmore, amendment No. 42 is an alternative. Amendments Nos. 41 and 42 may be taken together.
I move amendment No. 41:
In page 16, after line 51, to insert the following subsection:
"(3) Where the Minister proposes to make regulations under section 6, a draft of the regulations shall be laid before each of the House of the Oireachtas, and shall not come into effect until a resolution approving the draft has been passed by each such House.".
Where the Minister proposes to make regulations under section 6 the draft of the regulations should be laid before the Houses of the Oireachtas and should not come into effect until the resolution approving the draft has been passed by each House. I think it is in the public interest that that should happen.
I know this is the Deputy's standard request and I have to reject it as I have done on other legislation that is before the House.
I know the Minister's position. I will come back to this or Report Stage because of the importance of the extraordinary latitude the Minister is going to have in the regulations, reversing the normal procedure whereby the regulations have to be approved by motion. It can be done without debate it need be. It is just recognising the fact that in this instance the House is giving an extraordinary amount of discretionary powers by way of writing regulations including the form of a certificate to the Minister of the day. The Minister might consider the wisdom of what is being proposed.
Amendment No. 42 in my name is more or less the same as Deputy Gilmore's. It is a semantic difference, that is all. To add to what Deputy Quinn said, the real meat and substance of what we are doing under this legislation is going to be contained in the regulations. It is not just the question of dotting an i or crossing a t. These regulations are as fundamentally important in the area of building control legislation as were the regulations made under the Criminal Justice Act, 1984 in the area of criminal law. When that Bill first came before the House it was subject to regulations and the usual annulling motion. On reflection it was agreed, following debate in this House, that an affirmative motion would be the better way of dealing with it. I ask the Minister in the context of this Bill to consider taking on board either Deputy Gilmore's or my amendment. In giving the Minister that time to consider the matter, I propose withdrawing this amendment tonight and resubmitting it on Report Stage in the hope that the Minister will accept it at that stage.
I will consider it in the meantime.
I move amendment No. 43:
In page 17, before section 20, to insert the following new section:
20.—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.".
In submissions made by the professional bodies and others in the building industry, concern was expressed that the provisions of the Bill as it stands might have the effect of extending their liability beyond that which exists at present. They also expressed concern that a simple breach of the regulations might be used to found an action for damages, even where it was clear that they have been not negligent as such. While I am advised that these fears are in all probability groundless, it is not difficult to see their origins given the climate of litigation in which today's society finds itself. I wish to put on record that it is far from my intention that the Bill should extend civil liability in any way or that a statutory breach of the regulations, while being admissible as evidence in a civil court case, should be capable of being used to found a civil action. Accordingly, I propose to insert this amendment in the Bill to make it absolutely clear that a simple contravention of any of the provisions of the Bill or the regulations will not automatically confer a right of action in civil proceedings.
I have serious objections to this section. I presume my objections will not be taken on board by the Minister but I want to put on the record of this House again that this type of immunity from civil proceedings should not be part and parcel of this legislation.
I move amendment No. 44
In page 17, subsection (1), line 14, before "the Public" to insert "section 23 of".
The amendment is required to correct an error involving the omission of the reference to the actual section of the 1890 Public Health (Amendment) Act.
I move amendment No. 45:
In page 17, subsection(1), line 16, to delete "1890" and substitute "1890,".
This is a drafting amendment which inserts a comma after 1890.
Amendments Nos. 46 and 47 are related and may be discussed together.
I move amendment No. 46:
In page 17, subsection (2), lines 18 and 19, to delete "made under any section of any Act referred to in subsection (1)" and substitute "to which subsection (1) relates and".
I am advised by the draftsman that this is a technical amendment and should be inserted.
I move amendment No. 47:
In page 17, lines 29 to 31, to delete subsection (3) and substitute the following:
"(3) Save as is provided for in subsection (2), any bye-law to which subsection (1) relates shall, as regards a particular area, cease to have effect on the operative day to the extent that it relates to the subject matter of this Act.".
This is a technical amendment as well and the draftsman asked to have it inserted.
I move amendment No. 48:
In page 18, lines 1 to 9, to delete subsection (7) and substitute the following:
"(7) Where any works to which bye-laws applied (being bye-laws to which subsection (1) relates) were carried out prior to the 8th day of December, 1988, and any requirement of the bye-laws concerned, or any statutory requirement relating to such bye-laws, was not complied with, proceedings or any other act shall not be taken on the basis of such non-compliance, and approval to the carrying out of the works shall be deemed to have been granted, unless the building control authority serve on the owner of the works or other person concerned, within six months of the operative day, a notice stating that the works constitute a danger to public health or safety.".
I move amendment No. 49:
In page 18, before section 21, to insert the following new section:
21.—(1) Section 4 of the Local Government (Multi-Storey Buildings) Act, 1988, shall cease to apply to multi-storey buildings the construction of which is commenced on or after the operative day.
(2) Notwithstanding subsection (1), section 4 of the Local Government (Multi-Storey Buildings) Act, 1988, shall continue to have effect in relation to any multi-storey building to which section 20 (2) applies.
(3) For the purposes of this section, `multi-storey building' has the meaning assigned to it by section 1 of the Local Government (Multi-Storey Buildings) Act, 1988.
I move amendment No. 50:
In page 18, subsection (2), line 22, after "specified in" to insert "column (1) of".
This is a minor drafting amendment which corrects an omission.
I move amendment No. 51:
In page 20, Part II, to delete the following:
"38 (3) (a) The words `and 86(8),'.
38 (3) (b) The words `and 86 (8)'.".
This amendment corrects an error in that these provisions have already been repealed by the Local Government (Planning and Development) Act, 1976.
Second Schedule, as amended, agreed to.
May I take this opportunity to thank all those who contributed so efficiently to this Bill. It was obvious that it had been given some consideration. For a Bill that was introduced on 9 February 1984 there has been some time for consideration by all concerned and, happily, after a number of Ministers for the Environment and many hands to this legislation we are finally getting to the stage where we may have it on the Statute Book. I thank everyone concerned.