Building Control Bill 2005: From the Seanad.

Acting Chairman

Seanad amendments Nos. 1, 2 and 10 to 15, inclusive, are related and may be discussed together.

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
Section 2: In page 6, subsection (1), lines 21 to 23 deleted.
Seanad amendment agreed to.
Seanad amendment No. 2:
Section 2: In page 6, subsection (1), between lines 43 and 44, the following inserted:
""practical experience assessment procedures" means the procedures under, as the context requires—
(a) sections 19(4) and (5) and 20,
(b) section 34, or
(c) section 48;".

The Minister might like to elucidate.

Amendments Nos. 1, 2 and 10 to 15, inclusive, were discussed at some length.

During the debate on Report Stage in the Dáil an amendment was accepted to define the term "grandfather clause" and I have since been advised by the Office of the Parliamentary Counsel that the reference is inappropriate and I believe it is also politically incorrect. This was also the feeling in the Seanad.

I will return to amendment No. 2 because we have discussed and agreed amendment No. 1. Amendment No. 2 provides for an appropriate definition of "practical experience assessment procedures" as advised by the Parliamentary Counsel and it is relevant to sections 19, 20, 34 and 48. It is better to deal with the technical assessment and procedures as they are in the Bill.

The technical assessment board will be established under section 19 of the Bill to assess the eligibility for registration of those persons with ten or more years experience in the State performing duties commensurate with those of architect. Section 20 of the Bill sets out the procedure for such assessment and includes a requirement that the applicant submit to the board a curriculum vitae providing details of the work carried out by the applicant in the field of architecture, information on projects from the ten year period, a file containing at least four projects for which the applicant is responsible and independent verification of all documents submitted.

I hope that Deputies will accept that these provisions demonstrate that practical experience will be taken on board as an integral part of the technical assessment. Deputy Durkan knows as well as I that some people applying the title architect to themselves should not be free to practise in public. Moreover, I point out that the criteria set out in section 20 are clear, fair and it will be the responsibility of the technical assessment board to operate in a fair and equitable manner following enactment of the Bill.

Amendments Nos. 10, 12 and 14 are technical amendments that flow from the changes made in section 2 and amendments Nos. 11, 13 and 15 are consequential numbering amendments. The real issue here is the technical expertise assessment procedure established by the Bill which has, I think, universal support.

I agree with the Minister's assessment because practical experience is an issue that has repeatedly arisen before those of us who have worked in local authorities. Once upon a time I was told never to challenge a person on technical grounds only to discover that it is always safe to do so because by doing so one immediately hears where the practical and the technical meet — if they meet. I do not have a problem with these well-placed amendments.

My colleague, Deputy Fergus O'Dowd, has largely dealt with this Bill and this may not be the right time to make this point but I will proceed. Building control guidelines are laid down in this Bill but I once read of a bridge in another country that collapsed because, as shown by a cube test, the concrete did not come up to scratch. This was the case despite the existence of relevant regulations and controls and this made me wonder whether adequate provision has been made in this Bill for ongoing assessment regarding the application of regulations to particular structures.

That does not apply to this legislation because it relates to the assessment of people using the title "architect". Deputy Durkan is correct that those of us who have operated in local authorities such as Kildare and Wicklow know there are extraordinary people operating. Many gifted people who have not gone through formal training will be assisted by this legislation while charlatans will be weeded out. It is very important that a technical assessment of people who would practise be carried out and this legislation allows for such a provision.

Seanad amendment agreed to.

Acting Chairman

Seanad amendments Nos. 3, 4, 6, 8 and 9 are related and will be discussed together. Amendment No. 9 is consequential on amendment No. 8.

Seanad amendment No. 3:

New section: In page 14, before section 8, the following new section inserted:

8.—Section 8(4) of the Act of 1990 is amended—

(a) in paragraph (b), by substituting “that may be required by the notice;” for

"that may be required by the notice.", and

(b) by adding the following after paragraph (b):

"(c) require a person on whom the notice is served to pay to the building control authority the costs and expenses reasonably incurred by the authority in relation to the investigation and detection of the matters, the subject of the notice, the service of the notice and the preparation and giving of any warnings before the service of the notice, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers,

and, as regards the costs and expenses referred to in paragraph (c), in default of their payment, the authority may, subject to section 9 and without prejudice to subsection (8), recover the costs and expenses as a simple contract debt in any court of competent jurisdiction.”.

These amendments provide for the recoupment by the local building control authorities of costs incurred in the taking of enforcement measures when there have been breaches of the building code. We all accept that it is wrong that the taxpayer should bear the cost of a person's misbehaviour, whether it relates to dumping, building or other offences. The person who offends should carry the cost of his or her misbehaviour. This legislation will take effect where there have been enforcement measures.

The amendments arose from the debate in the Dáil on Report Stage and my colleague, the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy Batt O'Keeffe, accepted them in principle and promised they would be given further consideration with appropriate text provided. I proposed a suitable text on Committee Stage in the Seanad which I consider faithfully reflects the debate in this House heard by the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy O'Keeffe. I salute the fact that the Irish Wheelchair Association and the Disability Federation of Ireland requested these matters be included and am happy to be in a position to propose them for inclusion in the Bill. Like most people in the House I feel that access to buildings is of critical importance as all citizens deserve equality of access.

Amendments Nos. 3, 4, 6 and 8 provide for amendments to sections 8 and 10 of the Bill to provide for the recoupment by building control authorities of any costs or expenses reasonably incurred by the authority in respect of taking enforcement proceedings. This also applies also when the application is made under section 9 of the 1990 Act to the District Court by a person seeking the annulment, modification or alteration of an enforcement notice served. Additionally, it applies to costs incurred by the authorities in making applications to the Circuit Court or High Court under section 12 of the 1990 Act for an order for the removal, alteration or discontinuation of works or the making safe of any building or to prohibit or restrict the use of any building until a fire certificate, disability access certificate or regularisation certificate has been granted.

It is important to point out that costs may include a variety of things including the investigation and detection of matters, the issuing of warnings prior to the service of the notice, remuneration and other expenses relating to employees, consultants and advisers involved in the process. The cost may be recouped by a simple contract debt in any court of competent jurisdiction. This is a significant move forward that I commend to the House.

I agree with the Minister that defaulters do not comply with the regulations set down and cause serious danger to members of the public or whoever occupies the building or buildings. They may not provide adequate access in the correct manner. Now that we have arrived at this section the Minister might like to comment on my earlier query on the strength of buildings. The relevant authority could serve a notice on a person to the effect that a building was not strengthened adequately in a particular way or that the construction was not carried out in a way that would protect people who would use the building. How will that process be continued? Adequate provisions are in place for carrying out checks at various stages of construction, including the pouring of foundations. It can be difficult for local authorities to carry out inspections when a series of large building projects are under way in the area. Will the Minister comment?

In the past, the tendency was to err on the side of safety by ensuring that structures exceeded requirements. Taking a safe bet approach was good. Modern construction is slightly different because weights, load transfers and so forth are tested to a much finer degree than in the past. This, too, may be good. Are the current procedures in place adequate to achieving this task?

The recoupment of costs dealt with in the section refers to costs incurred in the taking of enforcement measures for breaches of any aspect of the building code. I assure the Deputy that in addition to the expenses arising from people trying to dodge their responsibilities, the provision also applies to the costs incurred by the authorities in making an application to the Circuit Court or High Court for the removal, alteration and discontinuation of works in the event of problems being discovered. It also applies to circumstances in which an authority makes a specific provision requiring the making safe of any building or to prohibit, make an order to prohibit or restrict the use of the building, specifically to do so until such time as the necessary fire certification, wheelchair access certification or regularisation certificate is issued. The section makes clear that councils have the right to recoup costs in a wide range of circumstances.

Seanad amendment agreed to.
Seanad amendment No. 4:
New section: In page 14, before section 8, the following new section inserted:
9.—Section 9 of the Act of 1990 is amended by inserting the following after subsection (3):
"(3A) If the court makes a determination to which subsection (3)(a) or (b) applies, it shall, unless it is satisfied that there are special and substantial reasons for not doing so, order the applicant to pay to the building control authority concerned the costs and expenses, as measured by the court, incurred by the authority—
(a) in appearing and adducing evidence at the hearing, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers, and
(b) in so far as they have not been recouped pursuant to the provision (if any) of the enforcement notice referred to in section 8(4)(c), in relation to the investigation and detection of the matters to which the application relates, including costs incurred in respect of remuneration and expenses as aforesaid.".
Seanad amendment agreed to.

Acting Chairman

Seanad amendments Nos. 5, 15 and 16 are related and will be discussed together.

Seanad amendment No. 5:

Section 8: In page 14, paragraph (c), line 45, “where” deleted and “when” substituted.

These are technical amendments, which were recommended by the Parliamentary Counsel. I commend them to the House.

Seanad amendment agreed to.
Seanad amendment No. 6:
Section 8: In page 14, between lines 46 and 47, the following inserted:
"(d) by inserting the following after subsection (2):
"(2A) If the High Court or the Circuit Court makes an order under this section providing for any of the matters referred to in subsection (1) or (1A), it shall, unless it is satisfied that there are special and substantial reasons for not doing so, order the person against whom the order is made to pay to the building authority concerned the costs and expenses, as measured by the court, incurred by the authority—
(a) in relation to the application under this section, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers, and
(b) in so far as they have not been recouped by any other means provided under this Act, in relation to the investigation and detection of the matters to which the application relates and the preparation and giving of any warnings before the making of the application, including costs incurred in respect of remuneration and expenses as aforesaid.”.”.
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 9: In page 15, paragraph (b), line 41, ""€25,000"" deleted and ""€50,000"" substituted.

During the debate on Report Stage in this House, a commitment was made that further consideration would be given to increasing fines for breaches of the building code. This is a matter of interest to Deputy Durkan. Section 9 already provides for substantial increases in fines. For example, the fine of €5,000 cited in the Bill was increased from £800. I am advised that €5,000 is the maximum fine for the jurisdiction of the District Court. Accordingly, it is not within our remit to propose to increase the figure beyond €5,000. The fine will, therefore, be increased to the maximum available within the jurisdiction of the District Court.

The section originally provided for an amendment to section 9 to provide for an increase in the maximum fine for conviction on indictment from £10,000 to €25,000. I propose to increase the original fine further to €50,000. I hope Deputies from all parties will welcome the amendment which will act as a deterrent for those who may consider it profitable to be non-compliant with building code regulations. When enacting legislation in this area, particularly at a time of major construction work, I want to ensure no one emerges from the back woods, cowboy fashion, believing it is possible to evade their responsibilities with impunity. They will be caught and heavily fined, particularly if convicted on indictment.

I support the proposal. The deterrent provided for should be sufficient to make an impact on perpetrators of breaches. In this period of inflated values in the construction sector, the proposal is reasonable.

Seanad amendment agreed to.
Seanad amendment No. 8:
Section 10: In page 16, between lines 13 and 14, the following inserted:
"17B.—On convicting a person of an offence under this Act in proceedings brought by a building control authority, the court shall, unless it is satisfied that there are special and substantial grounds for not doing so, order the person to pay to the authority the costs and expenses, as measured by the court, incurred by the authority in relation to the investigation, detection and prosecution of the offence, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers.".
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 10: In page 16, line 14 deleted and the following substituted:
"17C.—In any proceedings under this Act, a".
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 12: In page 18, subsection (2), lines 16 to 20, paragraph (h) deleted and the following substituted:
"(h) a person who has been assessed as eligible for registration by the Technical Assessment Board in accordance with the practical experience assessment procedures;”.
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 19: In page 26, subsection (1), lines 38 and 39, "paragraphs (a) to (f)“ deleted and “paragraphs (a) to (g) and (i)” substituted.
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 27: In page 34, subsection (2), lines 18 to 21, paragraph(l) deleted and the following substituted:
"(l) a person who has been assessed as eligible for registration by the Technical Assessment Board in accordance with the practical experience assessment procedures.”.
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 33: In page 40, subsection (1), lines 21 and 22, "paragraphs (a) to (l)“ deleted and “paragraphs (a) to (k)” substituted.
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 41: In page 47, subsection (2), lines 4 to 7, paragraph(k) deleted and the following substituted:
"(k) a person who has been assessed as eligible for registration by the Technical Assessment Board in accordance with the practical experience assessment procedures.”.
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 47: In page 53, subsection (1), lines 9 and 10,“paragraphs (a) to (i)” deleted and “paragraphs (a) to (j)” substituted.
Seanad amendment agreed to.
Seanad amendment No. 16:
Section 54: In page 58, subsection (3)(b), line 19, “Committee” deleted and “registration body” substituted.
Seanad amendment agreed to.
Seanad amendment No. 17:
Section 69: In page 67, lines 43 to 46, subsection (5) deleted and the following substituted:
"(5) The quorum for such a meeting shall be—
(a) 6 members in the case of a Professional Conduct Committee, or
(b) 4 members in any other case,
of which, subject to subsection (6), the majority shall be members who were nominated for appointment as members of the board or committee, as the case may be, by the Minister.”.

Section 69(5) was amended on Report Stage in the Dáil by increasing the number for a quorum at any meeting of the board or committee from four to six members. It arose due to the increase in the membership of the professional conduct committee to 11 members. The current amendment is necessary to require a quorum of four members for a meeting of any board or committee except for the professional conduct committees which will remain at six members. The appeals board has five members and the chairperson. There are also other sub-committees where the quorum of six members would not be appropriate. The amendment proposes a relatively minor technical change to the numbers for a quorum in the board or committees.

Is it in order to ask the Minister a question? I congratulate him on having this legislation passed. It has been a difficult exercise for all concerned and I appreciate the effort invested in the Bill. Having agreed the amendments, I assume there is no further business to attend to, other than to make some final comments. The Minister might avail of the opportunity, if he is in a position to do so, to indicate when he expects to bring this legislation into commission and when the public at large, and practitioners, can expect the provisions of registration and recognition to be brought into effect by the registered bodies, which will be acting, in effect, on behalf of the State in terms of the recognition of building engineer, surveyor and architect.

The Bill has had one of the longest gestation periods in history. I attended an RIAI function last week and was told that this legislation was first mooted when Gladstone was in charge of these issues. The profession has shown commendable patience. It is an historic occasion.

I would seek to have the commencement orders made as soon as possible. Having waited for well over 80 years since the foundation of the State, and a longer period since the time of the previous jurisdiction, we should get on with the commencement as soon as possible. I will ask my Department to make sure this happens.

Realistically, some categories of those who are eligible to apply for registration as an architect are very anxious to secure such recognition. Will this happen in the autumn or is it too soon for the Minister to give an indication?

I do not know what timing will apply but I have already told my Department that I am anxious to proceed in this regard. This is a legacy for this Dáil. It is an important piece of consumer legislation. It is very important to the professions involved and more important still to people who now pay significant fees to architects. A further point is that important changes are made in the Bill with regard to rogue building, which tended to be overlooked in some of the commentary.

It is a good Bill. I will ask my Department to fast-track the commencement arrangements to make sure there is no undue delay. Given that the legislation is passed, whoever holds this office should get on with the job of making the regulations and doing what should have been done a long time ago.

I thank Members for what was an incredibly constructive debate. The Bill was much improved in the Dáil and Seanad due to the constructive role played by Members on all sides.

I thank the Minister.

Seanad amendment agreed to.
Seanad amendments reported.

Acting Chairman

A message will be sent to Seanad Éireann acquainting it accordingly.