By agreement all Stages shall be concluded by 2.45 p.m. May I give an indication of the business for next week? On Wednesday we will be taking the Larceny Bill, the Winter Time Order and the conclusion of the Indpendent motion. On Thursday we will be taking the Derelict Sites Bill and the B & I Bill.
Building Control Bill, 1984: Committee and Final Stages.
Could I ask that more time be given to the Building Control Bill. What we are being told is that all the Stages are to be completed today. The Leader of the House has indicated why there is a time limit on the matter, but could we not extend the period for debate? There are 21 amendments and we are talking about completing all Stages. Two hours is totally inadequate to complete that.
In view of the slight change of business today because of the debate which we felt necessary to have on Item No. 1, may I urge the Leader to reconsider? The Building Control Bill has been around since 1984. It really is not worthy of this House if we must rush all Committee Stage and all Report Stage through now in a couple of hours. It is an essentially important Bill, one of the most important Bills that will come before us this session.
3.30 p.m.
Let us not rush the issue. That is all I am asking.
I am not going to get up here, when the Whips agreed last week that it would go through, and have the Order of Business disrupted. We gave the House the opportunity of Whips' meetings. There was a Whips' meeting last week at which it was agreed that this Bill would go through in two hours. Now we have got an extension to 3.30 p.m. and that is the extent of it.
We still have two hours. It is agreed that the debate will conclude in two hours? Agreed.
Sections 1 and 2 agreed to.
SECTION 3.
Amendment No. 1 not moved.
Section 3 agreed to.
Sections 4 and 5 agreed to.
SECTION 6.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 9, subsection (2) (c), line 3, after "persons" where it secondly occurs to insert "other than the person or classes of persons responsible for the design or construction of the building concerned".
What we have seen in this Bill is a matter that is welcome in principle, namely, an extension of a regulatory system on a national basis. What we are opposed to is the self-certification process which is established in this Bill. We believe that that particular process has no merit. In the earlier stage we pointed out that when such a proposal was being put forward in England it was totally rejected because in the words of the Attorney General, it was legal nonsense.
I propose that we provide a third party method of certification so that it is "other than the person or classes of persons responsible for the design or construction of the building concerned". That is extremely important because we have experience of unscrupulous builders. We have experience where buildings have been constructed in terms of design and they leave a lot to be desired. We have a situation in relation to what we regard as the quality, safety and standards that are necessary for the construction and occupation of buildings. From that point of view we in the Labour Party, believe it is very important that self-certification does not occur in the manner envisaged in this legislation. There should be outside certification that would include not just the people who are responsible for the design or construction but there would be some outside private certification. Even if the local authority is not the body that does it, at least there would be some outside body that is also responsible for certification. That was referred to in a number of reports — the Raglan House report and the task force that was established. It was agreed that in relation to certification very stringent conditions are required and they are not covered in the Bill as it stands.
I very strongly support this amendment. I appeal to the Minister to consider the proper role and function of the Seanad and to favourably view the amendments we propose here today which, perhaps, initially were not included in the legislation or were not considered suitable, if that is the correct word, when the legislation was passing through the Dáil. If this House is to have any meaning we must be able to tease out legislation in detail and try to improve where possible the legislation.
I recognise this is enabling legislation. This amendment is tabled out of concern that not the Minister, but perhaps some Minister in the future, might feel that self-certification is the only type of certification that would be needed in relation to building controls generally. Could I ask the Minister to consider this section of the Bill? Perhaps this is the most important amendment we will be dealing with today. It is one of the few amendments I will be getting exercised about, over and above the norm. The alarm bells rang, if they had not already rung, with many of us when the Irish Housebuilders' Association raised their arms in delight at the prospect of this Bill as it stood with no amendments. They were viewing a future of no by-laws and no inspections. To be fair to the Irish Housebuilders' Association, it was only those builders who would not have the same regard for standards who were particularly delighted. This Bill would be a charter for the cowboy builder, if the Minister allowed self-certification to be the norm.
The good builders, the builders who can stand over their work, those builders who have built up a good reputation, who are good employers and who know what they are about, welcome and want certification, not self-certification. They want third party inspection of their work because they have nothing to fear.
I remind the Minister that if self-certification is what we are looking at in the future we are playing into the hands of the cowboy builder and the unscrupulous professional whose standards are, at the very least, questionable. If self-certification is the order of the day they will be the builders whose business will be enhanced. Naturally, they are the builders who will get extra business if a quick certificate can be produced that will not be stood over. The "i's" will not be dotted and the "t's" will not be crossed. I am extremely concerned about the implication of self-certification as is now proposed in the Bill. May I also draw the Minister's attention to the fact that in those countries where they have self-certification — and I think I am correct in saying France and Belgium — it is backed up by an insurance policy so that, in the event of difficulties with the building subsequently or a claim by the person who has either purchased or constructed the building subsequently, they are fully covered by insurance for faulty workmanship, faulty design and construction.
Self-certification without compulsory back-up of insurance is just not acceptable to the trade. The reputable members of the building trade and the reputable professionals who service the building trade in design and in engineering technique donmot accept this as a positive move forward as we enter the Internal Market post-1992. We must at least have the same standards as other EC states. We cannot foist on the Irish people lower standards in relation to building control regulations. I am urging the Minister to concede on this point. Perhaps the motion as worded does not please you or does not please the parliamentary draftsman 100 per cent. We will not be pedantic. Certainly I will not stick out for the actual wording if you feel you can incorporate in the legislation the sentiments we are expressing today perhaps in a better way. I will be advised by you and your advisers. But what we must pursue — and I feel very strongly about this — is that the sentiments being expressed so strongly today by Senator Costello and myself be incorporated in the Bill.
This amendment seeks to exclude a possibility that certificates of compliance may be given by persons or classes of persons who designed or constructed the building; in other words, it would do away with the option of self-certification. I cannot accept this amendment and I shall elaborate. Under the self-certification system the designers and builders of individual projects would on their own responsibility provide certificates of compliance with the requirements of the building regulations. There is a clear recognition under this system that the primary responsibility for designing and constructing buildings rests with the persons involved and in my view it should be that way. I would remind the House that the powers of inspection and enforcement conferred on building control authorities elsewhere in the Bill can be used independently of any control system under section 6.
I want to say a few brief words on each of the control procedures that can be put in place under the provisions of section 6 of the Bill. Under the self-certification system the designers and builders of individual projects will on their own responsibility provide the certificates of compliance with the requirements of the building regulations. There are a number of attractions. Delays in starting up construction projects will be minimised, thus reducing costs and allowing simpler administration; and this type of system can be more easily introduced into those areas of the country where formalised building control systems do not operate at this time.
There is a clear recognition in this system that the primary responsibility for designing and constructing buildings rests with the industry itself and in my view this, as I said earlier, is as it should be. I would remind the House that the powers are there to deal with that also. Subsection 6 (2) (a) makes a provision for a full approval-type system similar to the present system of control which obtains in those areas where building by-laws are in operation. For a design-orientated approval system this would involve the submission of plans and specifications to the local authority for approval before work commences. Provision could be made for requiring approval to the completed building, but this would only be used in some exceptional circumstances that might arise in the future. Such a system would have significant implications for a building control authority's liability and any Minister for the Environment would be slow to invoke it. Nevertheless, I consider that a provision should be made for this system in broad enabling legislation of this type.
Before I leave this, I might say that approval systems generally have been criticised by the industry. They are considered to be too cumbersome because of the delays and increased costs. From a local authority point of view it is a costly system and one which could only be introduced with significant additions to the staff of many local authorities concerned. I need hardly add that the financial implications are obvious and are of such magnitude as not likely to be set aside. I will not say much more on this part.
Purchasers of dwellings or any building can look for a certificate in connection with a building or a property they intend to purchase. They also realise they can insist that they receive a competent report from consulting architects or consulting engineers structural and so on. If I was purchasing a house here in Dublin I would ask a competent surveyor to inspect that before I paid——
You could afford to, Minister.
In the case of anybody going to pay substantial money for any property it would be foolish of them not to do so. That is why I want to put it on the record of this House. If I was buying a house, let it be new or secondhand or an industrial building or whatever the case might be, I would demand a certificate of approval from competent architects for the type of building concerned. It is open to people to do that. If later that certificate does not stand up, they have options open to them then which you all know.
I want to make it quite clear I am satisfied that what we are doing here is correct. I understand the reservations — if that is the word to use — that Senator Costello and Senator Doyle have in respect of this, but on the explanation I have given on this I feel the protection is satisfactory.
This is an extremely important amendment. What is really the nub of the question is that we are deregulating the existing controls that are there, the existing requirments for regulation in relation to buildings in Dublin and the by-laws that are there. We are providing a national system, but what we are doing in the process is providing a self-certification system on the spurious grounds that this will speed up the planning procedure and so on. The real nub of the question is that we are now taking out of the control of the local authority a procedure and a statutory duty in relation to inspection and substituting a system of self-compliance, the certificate of compliance that is provided now by the person who will be constructing and designing. It really is the nub of this whole area of this Building Control Bill.
It is not good enough for the Minister to say that if we are thinking of buying a house we can employ a surveyor or an engineer. There are many people trying to put together money to buy a house. It is not something people do with a surplus of money. They are scraping to put the money together. Now, with this relaxation that is taking place in relation to building regulations, they will be obliged to employ a surveyor or an engineer. There is no other way out of it in order to ensure that they will have a proper structure. It is a question of caveat emptor that the Minister is presenting here. That is unsatisfactory. We should be concerned with ensuring that there is third party certification, whether that be the local authority or a private individual. The intention of this amendment is to ensure that situation continues, a situation which to a degree continues already here. What we would wish is that that would be extended on a national basis under the terms of this Bill.
With respect, I must disagree very strongly with the case put by the Minister of State in support of his viewpoint. There are may aspects that need underlying in our quest for third party certification. As I said in my initial contribution to this amendment, it is perhaps the most important amendment. The fact that the industry itself fully supports third party certification should be indicative to the Minister that this is the line we should be following. I understand that the technical regulations which are being drawn up are equivalent to the UK technical building regulations. But where we differ to the UK is that they refuse to accept self-certification. We will take what suits us from the British experience and throw out other issues. If the technical regulations are good enough for us to put down and insist that these are the regulations that the building industry will comply with, surely we should look to the fact that in the UK they have a full approval system in operation, which apparently according to his response, the Minister is not contemplating here. The lodging of plans and the indication of when work will start would be other areas that would improve this legislation — good legislation that is flawed in just a few areas.
It is on a constructive basis that we raise these points this morning. I know the Minister has heard them previously in the Dáil. I know that the Second Stage contributions dwelt on these to some extent. Would the Minister not consider, from the constructive way these points are being made and the amendments put, that there is real concern — not just in this House or in the Dáil but also in the industry itself — about what we are proposing to do? Why would the British, the Germans and the Belgiums not allow self-certification unless it was backed by an insurance system? Most countries will not allow it at all. In the two countries who have it — France and Belgium — it is backed by an insurance system. Why is it that the cowboy builders are welcoming with open arms the prospect of self-certification, the prospect of the deregulation of the by-laws? It will be a retrograde step in Dublin and indeed in the other urban areas, though they are not perhaps as strict in their implementation of the by-laws as is Dublin.
This Bill represents a retrograde step in relation to building control from what we have now. That cannot be acceptable, given the standards and the competition we are going to face post-1992. It is a charter for the cowboy construction industry. It is nothing less. Those builders — they are not many, but they are out there — who will cut corners and will keep down costs by doing shabby work and who can then self-certify their work as being up to standard without any fear of third party inspection from any source must be laughing all the way to the bank because the Minister refuses to accept what I think is a very reasonable amendment.
As the Minister is aware, there have been two major reports — the Cramer and Warner report, and indeed the task force report on multistorey buildings — which were issued recently. The recommendations of both those reports are out of line with what the Minister is proposing. I support the recommendations of both of those important reports, as do Members from both sides of this House. The tragedy of Raglan House was something we all hoped — the industry, the public and the politicians — we would learn from and, if at all humanly possible, prevent happening again. There are many points in those reports that do not apply just to the Raglan House situation but from which we must now learn. Both of those reports do not accept the Minister's view on this particular aspect. I would urge the Minister strongly to consider that.
I would like to repeat again, because it is important, that with the advent of the EC internal market, control regulations and regulations across the board in the different areas should be brought more into line: we should have similar sets of regulations and control of those regulations in all 12 EC member states so far as is possible. I am asking the Minister to consider that. We have the opportunity now to update our legislation. It has been a long time hanging around. I accept that. Indeed, when I was Junior Minister in the Department of the Environment this passed through my desk — and that is not today or yesterday. I would ask the Minister, with the advent of the EC, with the two major reports that do not agree with him, with the only people supporting him on this point being the cowboy construction element in the industry, to reconsider this matter. We feel very strongly on this. The legitimate construction industry and the professionals who service it feel very strongly that third party certification is essential; or, if the Minister insists on self-certification, it cannot proceed without a compulsory insurance backup.
I would fully support the sentiments expressed by Senator Doyle with regard to the whole area of self-certification. Indeed, I would appeal to the Minister at this stage to accept the amendment. There is no doubt, as Senator Doyle has pointed out, that the only people who welcome this clause in the Bill are the cowboy builders. Let me put it clearly on record that the vast majority of builders are responsible people and do an excellent job. Unfortunately, as in other areas there are the people who move in for the fast shilling. Those people are presented here with a golden opportunity — this whole question of self-certification.
I have no doubt that this will create major problems down the road, whether with regard to the type of building being constructed or the defects in it or indeed with the whole area of insurance. I believe it will increase the cost of insurance and will make it far more difficult for people to get insurance on a building rather than if this building was certified by a third party. I would appeal in all sincerity to the Minister to accept this reasonable amendment. When one carefully examines the situation one will acknowledge the need for this amendment.
Even if I were to accept the amendment, this amendment is flawed. If it means anything, it means that the class of persons who designed the building cannot certify the design. This is serious stuff. In other words, if an architect designed a building no other architect could certify that design because he would be of the class of persons responsible for that design. Similarly, no other engineer could certify engineering work. I am sure that the Senators do not want that to happen. The amendment would rule out both self-certification and third party certificates.
Senator Doyle referred to the report of the task force on multistorey buildings, which recommended that the Building Control Bill should be enacted as soon as possible. The task force reported in August 1987, three years after this Bill was published. The task force were fully aware of what was contained in the Building Control Bill before they recommended that it be enacted. Senator Doyle — I am not saying intentionally — seems to be linking cowboy builders and the House Builders' Association. I cannot accept this view. The vast bulk of the builders today are very decent, honourable people. I would point out also that all new houses especially are inspected under the structural guarantee scheme. If you want a design for a building, a new building, an extension to a building or whatever, you have to apply for planning permission to the local authority. They will be examining that also.
What percentage?
I can only speak about the authorities I deal with. Some would say, and some of my colleagues of all political parties on local authorities say, that the local authorities are over-exact in regard to planning and so on. We cannot wear two hats when it suits. We have to be honourable, and I am not saying that we are not. We cannot toss the coin any way if it comes down in the favour of what you want yourself. That is not the right way of doing things.
The Bill provides for a number of crucial matters outside section 6 — the building control regulation section. It will (a) establish building control authorities for the whole country, county councils and boroughs; (b) give these authorities power of inspection. Section 11, enforcement; section 8, prosecution; sections 16 and 17 ensure compliance with the building regulations. These powers are generous by any standards and can be exercised independently of any building control regulations. They are in line with other legislative codes for which the Minister is responsible and are arguably adequate in themselves to enable building regulations to be put into effect.
Inclusion of the self-certification system as an option in section 6 does no more than acknowledge the fact that primary responsibility for maintaining standards in the construction industry rests with those directly involved — the designers and builders. The designers have a lot of responsibility to-day. As you all know, builders and so on have to have special insurance to cover claims of faulty workmanship. I know buildings that have been built and major repairs have been carried out where faulty workmanship insurance had to be produced or they would not be allowed inside the front gate.
In general, we have a very fine group of architects and consulting engineers. I have been in many other countries where I have observed the designs of buildings and I have to say that our design teams are top class. They are designing in the Far East and many parts of Europe and great credit is due to them.
There are strict criteria laid down. If anyone were to ask me as a public representative for advice if they were going to do something major I would be able to put them on the right road. I am glad to say that I am able to do this in the constituency I have been fortunate to represent for so many years. Therefore, they know exactly what is happening and how they should approach it. There is no problem. The architects and consulting engineers draw up the plans for new buildings or extensions. There is an update of the Planning Bill going through the Dáil at the moment — it will be coming to this House — which has tightened up many areas, giving the planning authorities more power to deal with many matters.
I hope I have explained this as clearly as possible. There have been no convincing arguments put forward against the concept of self-certification. I am satisfied that self-certification can operate satisfactorily. I cannot accept this amendment. If self-certification becomes the option to be chosen it is not giving an open door to shoddiness of any kind. Other sections of this Bill give far-reaching powers to the local authorities in all of this. I see this as the best way of approaching the matter. In the housing grants area, which is under my responsibility as designated by the Minister for the Environment, I see that most houses today are being erected with a six years structural guarantee. Many of the house buyers qualify also for the £2,000 new house grant. The inspectors in the Department of the Environment are very competent people to examine houses. In fact, the complaint I usually, get is that they are possibly too exact in all of this.
The Minister said that no convincing arguments have been put forward against the concept of self-certification. Certainly, the corollary is true that no convincing arguments have been put forward in its favour. What is particularly dangerous in this legislation is the combination, where there is self-certification on the one hand and on the other hand there is no statutory duty of inspection. If there was one or the other, where there was third party certification, then the duties of inspection would not be so great; but where there is a situation where there is neither third party certification nor a statutory duty of inspection, then that is a recipe for disaster in terms of building regulations. It is that dual loophole in this legislation that is causing consternation and is the reason we are so opposed to the concept that is being put forward.
The Minister has some problems with the wording of the amendment. We are not requesting the Minister necessarily to accept the wording. There is no reason why the Minister should not restructure the amendment but he must accept that what he is producing in this legislation is a wide loophole that will allow for abuse. Once there is scope for abuse, that scope will be availed of by those who have the power. We want to close that loophole and that is why we are so insistent that the Minister would accept the amendment or accept the spirit of it and restructure it to a wording that would contain the spirit of it. If that was done, undoubtedly, we would have a much better measure. The Minister must realise that what he is doing here is deregulating a system that is in existence and that is satisfactory at present in Dublin and other areas where the local authority has the responsibility for certification.
This is an even wider matter. It is third party certification without specification as to what that precisely is. We are giving a further option there and we would certainly urge the Minister to take the spirit of the amendment on board and to plug one of the two critical loopholes that are in the Bill.
I want to make a couple of points on what Senator Costello has said relating to the arguments for self-certification. The first thing to be said is that when somebody submits an application for planning permission to the local authority, obviously those plans and specifications have to be examined in their own right and if the specifications are not up to scratch, then obviously planning permission will not be forthcoming. Might I also re-emphasise what the Minister said in this regard, that with the vast majority of houses being built nowadays, we are talking about a six-year structural guarantee, whereby people who involve themselves in purchasing such a house have a guarantee over a six year period. The third point referred to by the Minister is in relation to the new house grant whereby Department inspectors are in the position of regulating and examining the finished product.
Over and above all of that, one has to look at, for instance, the people who designed and constructed these buildings. I would be inclined to suggest that any third party or local authority would not be well positioned to certify that the building had been constructed according to the building regulation. Indeed if you had certification, are you not imputing to the local authority or building control inspectorate some of the blame that might rightly fall on the designers or planners of such buildings and perhaps defeating the purpose of the amendment?
I am not quite sure what words the Minister was putting in my mouth in relation to the Irish House Builders Association and cowboy builders. I will state my view quite clearly lest there be any ambiguity. The Irish House Builders Association is an extremely reputable body. Not all builders are reputable. They are two separate and distinct statements of fact and the Irish House Builders Association would agree with that view. I do not want to see us being party to any charter for the cowboy, be there only one out there or be there several. They are in a minority but like any other industry or business, they are there, and let us face up to it.
Self-certification as it is here, with no back-up, without any third party inspection would appear to me — and, might I say, to the professionals in the industry and to the reputable builder and to many other people involved in the construction industry — a matter of concern.
I read with interest Senator O'Keeffe's contribution to Second Stage which led me to believe that he might have had a word in the ear of the Minister between Second Stage and Committee Stage in relation to control regulations and inspection. I hope I am not reading more into what he said than was actually there but I felt he was coming some way down the road of this discussion here this morning. I was hoping we might be able to call on his support for what we are asking this morning. I feel there is some sympathy there from what the Senator was saying and I hope I am not putting words in his mouth when I say that.
When I stood up initially to support the amendment I did say that it was the sentiments of what we were saying here we wanted incorporated. We will not quibble with the Minister. He has perhaps a reasonable point in his criticism of the wording. That was in the back of my mind when I said I would not get hung up on the words being used, that it was the sentiments we would like incorporated. The Minister can have a word with the parliamentary draftsman as to how best to express the point that we want third party certification and we will be advised by the Minister and his technical people as to how to do that. The amendment is not a tablet of stone but in what we are saying and in our sentiments we believe most passionately.
That is why we are asking the Minister to consider what we are saying and to come back on Report Stage with the Minister's own amendment that would incorporate our request for third party inspection. I would be satisfied, and I suspect that Senator Costello might be satisfied, if the Minister would state that to us now, and we can then move on to the other important sections. We believe passionately in this section. The loopholes that appear to be there we want plugged just for the cowboy builder and the cowboy element of the industry. We want to protect the legitimate and reputable construction industry. We want to ensure that standards in Ireland are equal to those in the rest of Europe as we enter the internal market.
The Minister stated that he heard no convincing arguments against self-certification. That is the fact that the cowboy builder is thrilled at this prospect; that it is a charter for the disreputable people in the construction industry; that they are the people who have most to gain, those who take the short cuts, those that are on to the quick buck by not maintaining standards that we feel are necessary, and who can then self-certify their own work. That is the most convincing reason of all, as well as the necessity to protect John and Mary Citizen from lower standards than their counterparts in the rest of Europe can expect and do now enjoy. We are also protecting the Dublin John and Mary Citizen from lower standards than they now enjoy under the by-law regulations.
I find those extremely convincing arguments and I would urge the Minister please, to accept the arguments made from all sides of this House. It is not just our view or the Minister's view. We are united on this.
The Minister referred to section 11 in relation to the local authorities' involvement. Yes, they certainly have powers, but they have no obligation and no duty. Let us not play with words. All we are asking the Minister here is to put the powers referred to in section 11 on to a statutory basis and we are with him. What we are asking is a very small step from what the Minister is saying is in the Bill. I would ask the Minister to come with us that step and we will all be united in relation to it. The Bill is fine but it is the enforcement procedure here that we are not satisfied with. Would the Minister, please, move just one step down the road from the powers of inspection by authorised persons to the obligation and put it on a statutory basis?
The Minister referred to the use of arguments to suit ourselves in different contexts. I did not quite understand the Minister's point. He referred to the planning system and the development control system. He must be aware of the document published by the Environmental Research Unit, formerly An Foras Forbartha. It is a survey of 1986 planning applications and development based on them in 1989. The Minister knows perfectly well that even if things are put on a statutory basis, work does not necessary get done but you can be quite sure that if it is not on a statutory basis it will certainly not get done. The Minister must appreciate that. There is no guarantee that if what we are requesting this morning was put on a statutory basis every person who constructs or purchases a house or building will be protected but there is certainly no guarantee of protection unless it is on a statutory basis. We must go as far down the road as we possibly can in this regard.
I referred previously to the Kramer and Warner Report and to the task force report. The Minister quoted selectively from that report when he said they welcomed the enactment of the Building Control Bill we are talking about here this morning. He omitted, however, to quote the parts we are talking about now. For the record, the Government task force on multi-storey buildings which reported, as the Minister said, in 1987, dealt with the concept of building control. That report recognised that the implementation of building regulations is of little value unless they can be effectively enforced. There is no point in having regulations unless we are able to enforce them. All the regulations in the world will make no difference unless we enforce them. The report did not even consider having certain buildings exempt. They wanted all buildings to be within these controls.
Specifically, in relation to a certification system, the Government task force on multi-storey buildings reporting in 1987 stated:
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.
The task force went on to recommend:
The task force recommends that the Building Control Bill should be enacted as soon as possible—
that was the Minister's point; he selectively took out that sentence.
—so that building regulations and an effective building control system can be put on a statutory basis.
The Minister was being disingenuous. He quoted that the task force recommended that the Building Control Bill should be enacted as soon as possible. He did not even get to the end of the sentence which said: "... so that building regulations and an effective building control system can be put on a statutory basis". The Minister accused some of us of being selective but he is also selective. I accuse him, without fear of contradiction, of being very selective in his quotations. I urge him to accept our amendment which has the support of the legitimate people in the industry.
Local authorities will have the very same powers of inspection under this Bill as they have under by-laws in Dublin at present. I do not think anyone is suggesting that the Dublin authorities are not doing a good job and I cannot see that they will do any less in the future.
I must point out that the amendment, if accepted, would place a building control authority in an impossible position. In practice, they would be obliged to supervise every building. Otherwise they would be open to the accusation that they had not carried out sufficient monitoring every time a breach of the building regulations came to light. They could also be open to claims from the very people guilty of a breach of the building regulations, if they did not pick up the defects. What would that mean to Wexford County Council, for example, as the Senator is a member of that authority? They are a very competent local authority as I know quite well, but human nature being what it is, say there was a breach, then the developers, the tenants or the owners could take an action against Wexford County Council. Who would pay the compensation? My Department would not pay. Who then would pay the compensation if it is not Wexford County Council? Rightly or wrongly the taxpayer in Wexford would pay.
I am noted as being as helpful as I possibly can. I appreciate very much the Senator's point of view, and I would not like anyone here to think otherwise. However, I am sorry that I cannot agree to the amendment. I will not be rude to the Senator — far from me to do so — but in a very long debate I have explained why I cannot accept the amendment.
Is the Minister now saying that section 11 is inoperable?
I did not say that.
How will the local authorities inspect given what the Minister has just said?
I am not saying that. The local authority always had a right to inspect. Under this Bill a local authority can inspect a building if they so wish but the Senator wants to make it mandatory. I am not prepared to go down that road. I have spelt out in simple, plain, humble language what is involved. If the local authority in Wexford do not comply in the eyes of the law or in the eyes of the developers, and they are caught for £1 million, will they be able to pay it?
Most unlikely.
No. The taxpayers in Wexford would not thank you for it. They would be disgusted. I want to be very clear on this. There are laws there and when planning applications are made the premises will be inspected by the firm's chief or the designated officer of the fire chief's office for the country. If it is housing — house improvements and especially new housing — it comes under my Department and others. I stated very clearly, and I cannot be more precise, that if I was purchasing a building today I would get a consultant engineer or an architect to certify it. If they point out defects, the purchaser will know about them. The Senator is under-estimating the intelligence of the Irish people. I find them most intelligent and they understand all this. I am putting it on the record that a purchaser should employ the services of a competent firm of architects or consultant engineers to certify the conditions of the property. I would not buy anything without such certificate.
Does the Minister feel that the insurance system in the building trade is such that, effectively, there is compulsory insurance backing up his proposal for self-certification? Is that the Minister's understanding — that in the event of problems arising everyone will be protected by the insurance system that is in place?
All competent architects and surveyors have that today, and they are very foolish if they have not. They are bonded.
And builders? What about the incompetent ones? We are legislating for the intelligentia of the Irish construction industry and the reputable people. I am afraid there is a common denominator.
In the case of major buildings being built today, there must be a tax certificate. We are totally under-estimating our own competence. I am surprised at the Senator.
Not every citizen has the same expertise as the Minister. I would not have it, I am afraid, either.
I am surprised at the Senator because I regard her as a highly intelligent person.
This debate has gone on long enough. The Minister has made his position quite clear.
Considering what the Minister has said it is amazing that it is so difficult for us to cover this area whereas the rest of Europe seems to have no trouble in doing it. We are unique in Europe proposing a system of self-certification. How can that be the situation if the Minister is now presenting to us a barricade of legal problems and responsibilities in relation to the local authority, if we are to put into operation a system whereby we have a third party certification? I find this impossible. Surely the responsibility of the legislation is to ensure that every individual buyer will not be faced with a problem of tracking down a certifier and having to take that individual to court if the self-certification does not comply with the regulations as it purported to do? There is a role here for protection of the citizen and we are saying that third party certification built into the law will provide that protection.
I am not prepared to accept the generality of the statement by the Minister that if we go down this road we are into a morass, that we find ourselves with more problems than we are solving. In having self-certification without statutory responsibility even to monitor the self-certification we are going into a morass.
Certification is only one option but if we have a system of certification I would argue that the best people to certify are the people who designed and constructed the building. Any third party or a local authority would not be as well positioned to certify that the building had been constructed according to the building regulations. Responsibility should rest with the people involved in the project. So involving others would tend to muddy the waters. I cannot put it more clearly.
Amendment put.
The Committee divided: Tá, 11; Níl, 16.
Tá
- Costello, Joe.
- Doyle, Avril.
- Hourigan, Richard V.
- Howard, Michael.
- Kennedy, Patrick.
- Manning, Maurice.
- Naughten, Liam.
- O'Toole, Joe.
- Ryan, John.
- Staunton, Myles.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Conroy, Richard.
- Finneran, Michael.
- Fitzgerald, Tom.
- Honan, Tras.
- Lanigan, Michael.
- McCarthy, Seán.
- Mooney, Paschal.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Keeffe, Batt.
- Ryan, Eoin David.
- Wright, G.V.
Tellers: Tá, Senators Costello and Staunton; Níl, Senators Wright and Conroy.
Amendment declared lost.
Amendments No. 4 to 6, inclusive, not moved.
I move amendment No. 7:
In page 10, subsection (3), line 2, after "regulations." to add: "Notwithstanding the generality of this subsection, the Building Control Building Regulations shall provide for domestic dwellings".
The area of domestic dwellings and alterations thereto has been exempted from the Bill. I feel that is a serious exemption that should be addressed and it is the intent of the amendment to address it. In recent weeks we have seen in the newspapers various reports, particularly emanating from the West in the counties of Clare, Galway, Mayo and Sligo, of a very high level of radon seeping through the floors of buildings. Radon causes cancer. If we look at the development control system — I refer to the 1989 report of the Environmental Research Unit, even where planning permission is given there is a tremendous amount of ignorance in relation to proper protections. In relation to sewage, ventilation and this new area of rural dwelling that will affect rural dwelling, particularly in the West, it is important that we have proper building regulations to protect the safety and the health of people who would be at risk if these regulations are no longer in operation. This report, which Senator Doyle has already referred to, states on page 33:
While all septic tank systems are planned to use percolation areas there is strong indication that very few actually do. In almost all cases where it would be easily investigated it was found that a soakage pit rather than a percolation area had been used and that occupants were quite unaware of the pollution risk to ground water involved.
It is very important to make sure that the safety, health and hygiene of people is covered by safety regulations.
Secondly, it is extremely important that we cover the whole area of insurance. If dwelling houses are to be exempt from regulations in terms of design, construction and if self-certification will not apply, can the Minister guarantee that people buying houses, making the most substantial purchase of their lives, will have the protection of that particular aspect of consumer legislation? Will we be able to guarantee the safety, quality and the standards of dwellings that will cover requirements for insurance purposes? I am very worried about this development.
It will be totally disastrous if we have a system whereby compliance with a control system in relation to regulations will not apply to dwelling houses. By specifically exempting them from this Bill we are once again indicating the loopholes in the Bill. These loopholes should be filled. The Bill should be as extensive and comprehensive as possible and its intent should be to protect people rather than to put them at greater risk in terms of the dwelling place that they will have to spend their lives in. It could be a risk to their health and to their financial security in terms of insurance.
I also support very strongly this amendment. I know the Minister is aware of the fact that a Department of the Environment memo on the administration of building control in 1982 proposed that low rise housing be exempt from the necessity to comply with the control system. Obviously, this concept has found its way into this section of the Bill before us. The views generally are that it would be a considerable disaster to the consumer generally if this were allowed to stand as it is.
As Senator Costello said, the purchase of the family home is the single greatest consumer purchase in the lifetime of any family or of any individual. All we are asking the Minister in the wording of this regulation is to extend the building control regulations to domestic dwellings, that they should provide for domestic dwellings as well as all other construction with the exception, I understand, of prisons. Could I ask the Minister to take the sentiments of what we are saying on board. If he quibbles with the wording we will stand corrected. It is not a tablet of stone, but we are very strongly of the view that domestic dwellings must be included in this particular section under the building control regulations. I direct his attention to the particular need to add to what little protection there is there to the consumer in the single greatest purchase in his or her life.
The Minister will probably come back and tell us that the national house building guarantee scheme is in operation but this has a limited life. It only applies to six years after construction and then it is no longer there as a fallback or as a protection. There is an interesting point here which I think needs to be put on the record that is that that scheme does not only apply to domestic dwellings. Under the building guarantee scheme — these are not my figures, they are not local authority figures but the figures of the CIF — claims for faulty construction and claims in relation to problems of one kind or another are eight times greater outside Dublin than they are in the Dublin area.
I might also make the point that we have the by-law regulations in the Dubln area at the moment. They will go when this legislation is passed. That just shows that the controls that are in place in the by-law regulation have a positive effect in ensuring there is a minimally acceptable standard of construction. There is eight times the number of problems outside the Dublin area, where there are no by-law regulations with their inherant controls as there are in Dublin at the moment. In this case we are asking for domestic dwellings to be brought into the legislation. If the Minister could ensure that we would reduce the number of claims of ordinary John and Mary citizens by that amount it would be well worth while accepting our amendment.
I urge the Minister, in view of the importance of the purchase of the family home by the individual or indeed by families generally, to accept the sentiments of the amendment. Hopefully he will be able to accept the wording, if not if he incorporates his wording in the Bill, but taking on board our suggestions, this would be acceptable from our point of view.
I assure the House that no decisions have been taken to exclude housing from any building control regulations. The type of controls and the buildings to which they apply are matters for the regulations. I see no reason to single out housing for the type of special treatment which this amendment proposes. In starting up a particular system of control it may be - I say "may be"— necessary to exclude certain types of buildings, even domestic dwellings in the interests of curtailing to a reasonable degree the workload arising for building control authorities. This is a very important point.
I would make the point also that there are de facto controls on housing already in place, including the new house building guarantee scheme and housing grant inspections. The amendment could also have the effect of forcing a building control authority to apply for approval for the building of houses which they undertake while wearing their own housing authority hat. For these reasons I am not able to go down that road with the Senators. I would like to relieve their anxiety if I possibly can. It is important that the Bill should be flexible. I am not saying that housing or any other type of building will be excluded. These are options which should be available under the Bill.
Senator Costello states that dwellings are excluded from control systems under the Bill. This is not the case. I would like the Senator to show me where he found this exemption. I can guarantee Senators that dwellings will be covered in the building regulations and they will have to be built in accordance with the regulations. Senator Costello mentioned radon. The question of this is one to be dealt with in building regulations not in the control system. This is an area where a lot of work is being done at this time.
Local authorities will have the very same powers of inspection under this Bill as they have in the Dublin area at the moment under the by-laws. I do not think anyone is suggesting that the Dublin authorities are not doing a good job. I am saying that I do not see a need for this amendment because I do not want to tie it up too much. I want to leave flexibility in it. That is my aim now. I am not excluding housing or any other type of building and I am not saying it will be excluded.
Has the Minister been advised to exclude low rise housing in his Department?
I make up my own mind on everything.
The Minister does not listen to them at all.
They advise me. I listen to everybody.
Would it be the Minister's wish that domestic dwellings be included?
I have an open mind on it.
Can we persuade the Minister?
It is a matter for the regulations. Domestic dwellings will be open to inspection by the local authorities anyway and, of course, there is an inspection for the structural guarantee scheme grant. That is ended in six years.
Will the Minister come back after six years with either of those?
If anything of major structural defect was to happen would the Senator not agree that it should happen before that?
Often but not always.
It is a hundred to one chance.
No.
The local authority have rights under it. I am not excluding it. I want to be very clear on that. I want to be as flexible as I possibly can. I must take a lot into account. The Senator asked about my officials. I always take them into account.
The Minister has told me he does not take them into account.
Yes, but at the end of the day I have to make the decision and they respect that.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 8, Amendment No. 9 is an alternative and both amendments may be discussed together.
Amendments Nos. 8 to 10, inclusive, not moved.
I move amendment No. 11:
In page 10, between lines 34 and 35, to insert the following subsection:
"(—) 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.".
This amendment deals with self-certification and this is the second crucial amendment in relation to monitoring. We have lost the vote on self-certification, so that now will be part of the Bill. Therefore, it is absolutely essential that we have a means of monitoring that self-certification and that we have more than simply a statement to the effect that power to inspect is available to the local authority. It is essential that that be made a statutory obligation and duty. That is at the nub of what we are saying here, that there be a minimum a random inspection obligation on the local authority to look into the area of certification, to see that standards are maintained and that what is stated in certificates is factual rather than individuals entering these certificates without complying adequately, effectively and correctly with the requirements.
Following the Raglan House disaster report, the task force recommended that there be an effective building control system established on a statutory basis. We are not taking this out of the air and saying that it is not necessary. We are stating what has been stated by a Government body set up specifically to look into one of the most serious tragedies in the building industry. If we are to have this certification process I think everybody will accept that self-certification, self-assessment or self-monitoring is not sufficient. You must have some outside agency with a specific duty to assess, to examine, to monitor. The very fear of that happening would have a certain effect on those who might be tempted to abuse the system, which I believe is quite open to abuse.
There must be an obligation to have random checking of certificates. It is not much use putting into position penalties for fraudulent abuse of the system unless those people who might be tempted to indulge in such abuse realise that an effective monitoring system is in operation.
I urge the Minister to accept this amendment. He has not chosen to take on board the other important amendment. I do not think we can allow the legislation to go through with self-certification taking place on the one hand and no statutory obligation to monitor on the other. That combination is a recipe for disaster. If the Minister looks at any other area of society where such a system has operated in this country or other countries, he must recognise that it is wide open to abuse.
Could I urge the Minister most seriously that of all of the amendments that remain here this is the one that I consider to be the most important for him to accept, again not necessarily the exact words but certainly the sentiments and the spirit that is in this amendment. Let him reword it if he thinks fit but certainly provide a statutory obligation for monitoring of certification.
I support very strongly the case outlined by Senator Costello in support of this amendment. Interestingly, thinking back to my short tenure at the Department of the Environment, I understand it was the view of the Department of the Environment in the early eighties, as they were drafting this Bill before us, that such a system should be in place. In fact, their views were expressed in a memo at the time in words almost identical to the amendment that is here before us today. We are not preaching heresy. I know there is a strong body of opinion in the Minister's Department that would support the concept we are moving in this amendment. I ask the Minister to please ensure that there is a control system, a monitoring system, a spotcheck system of some description, in relation to the self-assessment that it appears we will now have in this legislation.
When self-assessment became the order of the day, in relation to taxation, the tax inspectors were given the power of random checking, of random monitoring that the assessment was being done on a correct and legal basis and that there was no fraudulent assessment. There are severe penalties for fraudulent self-assessment in the taxation area. We are talking about self-certification in relation to building construction. If self-certification is going to be effective at all — and we have expressed our doubts already here today — there must be a system of monitoring the control regulations or monitoring the self-assessment to be sure that it is working effectively. If builders — again we are talking about a minority of builders who are not reputable and who do not enhance the reputation of their honourable profession — feel that they are never likely to be monitored and that the certificates they issue will never be checked by an outside authority there is little incentive for them to be sure they have their act in order.
Certification without an adequate policing role for building control authorities will, as the Minister will realise, be absolutely meaningless. I have already quoted from the task force report on the Raglan House disaster. That report recommended that an effective building control system be put on a statutory basis. That is all we are asking from the Minister — that to support his views in relation to self-certification he should now, on a statutory basis, have an effective building control system backing that self-certification. If certification is to have any useful effect at all in maintaining standards in public health and safety, self-certifiers must be conscious of the fact that any negligence by them has a good chance of being discovered. In other words, they must be aware that there is an outside body that can inspect and monitor and that can "pull them to book" and they will have to answer for any irregularities that may have occurred.
There would be little point, when we come to section 16 (7), in providing penalties for fraudulent certificates unless we have an effective monitoring system able to pick up these fraudulent certificates. The logic of the argument outweighs any contrary argument. In view of the fact that there is a major body of support for the sentiments contained in this amendment within the Department of the Environment and in view of the logic of the argument and the need to be able to monitor self-certification and the effectiveness of the control system, I urge you to accept the amendment.
This amendment is designed to place a statutory obligation on building control authorities to take enforcement action. This is totally unnecessary. It is unusual. It is out of line with other legislation for which the Minister for the Environment is responsible. Local Government legislation generally confers power on local authorities on the basis that these bodies, as responsible public authorities, will use these powers properly and with due regard to the objectives of the legislative code in question. For example, 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 responsibility. It is interesting that Senator Doyle is now trying to put statutory obligation to inspect on the local authority. It was the Senator's Government and Senator Costello's party who produced this Bill.
Yes.
I admit you were in the Department at the time. There is different thinking. That is while I respect my officials who are of the highest integrity and so on. I have worked with them for a long time——
You had better say that many times — keep putting it on the record.
Yes, but I am, and always have been, a man with my own views. I touched on this earlier. I must point out that this amendment, if accepted, would place a building control authority in an impossible position. In practice, they would be obliged to supervise every building. Otherwise, they would be open to the accusation that they had not carried out sufficient monitoring every time a breach of the building regulations came to light. They could also be open to claims from the very people guilty of breaching the building regulations, if they did not pick up the defects.
Not every building, but on a spot check basis, just a policing——
I will come to that.
The Minister is seeking to put the "frighteners" on us on this particular issue. It is not necessary to have 100 per cent inspection. We are talking about a random inspection which is what takes place at present under the Dublin by-laws. This is what is going on at present. The Minister is telling us, here and now, that Dublin County Council and Dublin Corporation are being taken to court because they have not inspected every single one of the buildings they are in the process of inspecting.
We can do a random inspection. The Senators seem to be suggesting that there is a statutory obligation on local authorities to enforce the by-laws. I am not aware of any such statutory obligation. For example, the building by-laws in force in Dublin city contain no such provision. We all know that regular inspections are undertaken by the building by-law staff here in Dublin. The local authorities operating the building by-laws have discretionary powers of inspection at the moment. They will have similar powers under this Bill. May I say also that there will be no change? I would not like to put a statutory obligation on the authority to examine every building.
Neither would I.
They have the power at the moment to do spot checks.
What checks?
We are not stopping them, but I do not want to make it mandatory. I think the Senator is somewhat confused on this issue.
We are not as intelligent as the Minister. I apologise for that.
I will forgive the Senator.
Acting Chairman
Perhaps you would allow each other to complete your contributions? Both sides will have ample opportunity.
Senator Costello, if I may continue in that vein now, the local authorities have the right at the moment to do any check they wish but I am not going to make it mandatory.
Taking up some of the points the Minister made, this amendment deals with a monitoring system in relation to the control system the Minister is putting in place. It is monitoring the control system rather than monitoring the construction. That is the important point here. That is the important point rather than detailed inspection of the building at every stage of construction. We want to be sure that the self-certification system that will be put in place is operated above-board and that there is no fraudulent self-certification. The penalties, which we will come to in section 16, will be irrelevant if we do not have a checking system to be sure that the self-certification is working.
The Minister then dealt with the Dublin by-laws and with the question of whether they were on a statutory basis. In relation to that point, I would like to state yet again the point I made earlier — that the very fact that Dublin local authorities are using effectively their controls and their monitoring system has meant that there are eight times the number of problems in the construction industry outside Dublin than there are in Dublin at the moment. That point cannot be forgotten. They are using their powers of monitoring, inspection and control. They do not appear to be afraid — as the Minister has led us to believe that local authorities will be in the future — of claims on them by either the certifier who is being called to book or by the builder, architect or engineer concerned with the particular building. Apparently, in Dublin the "frighteners" are not on those operating the by-laws at the moment. I wonder why the Minister feels that the "frighteners" now will be on all local authorities if they were to get more involved on a statutory basis with either the certification or the monitoring of self-certification that we will have. It does not add up. The Minister made the point earlier that we cannot have jam on both sides of our bread, if I interpret what he was saying to us and with respect, I do not think he can, either.
If they had an obligation to inspect, even on a spot check basis there must be the danger of liability.
Does it happen now in Dublin?
The Senator said that there are eight times the number of problems outside the Dublin area. I am not aware of that.
Those are CIF figures, under the structural guarantees to which I am drawing the Minister's attention.
They can be put right. That is what it is there for. The Senator is not right. She is getting confused. That is what is wrong. I made this point earlier, if I were to put this into statutory form the Senators local authority could be held liable for every building erected in Wexford.
It is not the building; it is the control system we want to monitor.
The Senator wants me to make that statutory and I am not prepared to go down that road.
Yes. It can be done on a spot check system.
The Senator is wasting her time.
It can be done as it is in Dublin. Even though the by-laws are not statutory, they are very effective.
The Minister is stating categorically that this cannot be done, because any system of statutory obligation on the local authority would have dire consequences in relation to responsibility and financial responsibility. What we are proposing here is effectively what the task force proposed, namely, that an effective building control system be put on a statutory basis. Is the Minister telling us that he got legal advice from the Attorney General to the contrary and that this is not permissible? If he is saying it cannot be done and we cannot have a system of random checks because he got legal advice that there are too many complex implications for the local authority, then that is a different matter. If the Minister is simply stating that he is not prepared to employ or put in place a monitoring system because that is his opinion, then we are certainly not prepared to accept that.
There is a lot of misdirection on this. There certainly is not the slightest difficulty about implementing what is in this proposal. I have seen it work. The red herring of liability does not stand up to legal examination for the simple reason that a local authority could make it a requirement, as they do in Dublin, that at every stage of the building documentation has to be submitted to the local authority — for instance, when the foundations are laid, when the sub-floors are put in, or when they put on the wall plate, etc. There is no difficulty whatsoever in implementing the first part. The requirement then on the local authority is to spot check the regulations. The local authority are not required to give any commitment as to safety with responsibility attaching. That is not the way it works. The requirement would only be whatever they wished to do themselves. Because what they wish to do would be widely known among the building fraternity they would not have created an expectancy that every contractor or builder who submitted the appropriate piece of paper was going to have a full check, and therefore it was not a clarification by the local authority. Liability would only arise if an expectancy were created that every building would be inspected and passed. Only following some form of certification like that in that arrangement, would liability attach. Liability cannot attach where there is not an expectancy of every building being required to be tested to meet the requirements. That is the reality.
The Senators are totally confused about this.
I just said that.
They inspect the buildings without a statutory obligation——
They are not afraid?
The discretionary powers to inspect in Dublin will also, under this Bill, apply to all other local authorities.
About time too.
We accept that, also. The level of claims under the guarantee scheme for the whole country is so small as not to give any basis for stating that there is any problem outside the Dublin area it is so small.
Eight times the Dublin figure?
They come under the structural guarantee. There are laws there.
In the first six years?
Of course there are. There are other ways and means, as I explained earlier, and the Minister knows what they are. I shall not go down that road again because I gave a very long explanatory statement on how that should be done and I know it will be recorded in the House. It will be very interesting for house purchasers and others to see that.
I asked a specific question. Is the Minister stating that as his opinion, or has he got legal advice on the terms of liability on the local authority if this system of monitoring is put in place? The Minister has not replied to that. My view is that what he is referring to is an inadequacy of staffing and a lack of good intention to provide the necessary resources to ensure that there is an effective system of monitoring.
There has been a case where a local authority gave a loan, and subsequently serious defects showed up and the local authority were liable in the courts.
Why? Before issuing and granting the loan, they sent an architect of their own to check the building. Having satisfied himself on behalf of the local authority that the building was in a satisfactory condition, they then issued the loan. They made three or four decisions before they handed out the money. When they employed an architect they accepted that liability. It is important to look at the words again —"in order to satisfactorily monitor the effectiveness of the control system". One would imagine the Minister would be appreciative of this help but he would have been expected to understand, and the Department to accept, that it is not to satisfactorily implement the building programme, but just to satisfy themselves as to the effectiveness of the monitoring programme. It is not a way of satisfying themselves that all the building regulations are complied with. It is a checking of the checking system and a checking of the checkers. It seems to me a very reasonable way of doing it. I think the Minister knows — and I know — that in planning and building matters there is absolutely no limit to how human ingenuity can get around regulations and rules. I have seen it happen myself. There is not the slightest doubt but if we put this into operation without a monitoring system then we might just as well deregulate the whole building industry and let the people build wherever they want and how they want to, without any planning authority. We must have a checking system.
It is the checking of the building controls, not the building regulations, not the technical regulations. That is the point we are trying to put to the Minister.
Senator O'Toole, just for your information, may I say that all I can do in the Chair is facilitate response from the Minister. I cannot put words in his mouth if he does not wish to reply.
Indeed. The Minister was in full flight with his responses. We did not intend to interrupt rudely. He was not quite finished. We felt it was important to leap to the defence of the Minister.
Acting Chairman
Point taken. I am putting the question in the absence of a response from the Minister, who does not seem to be offering any further contribution.
The Minister should reply.
Acting Chairman
I cannot put words in the mouth of the Minister. I feel that this amendment has been debated extensively. We are now going into repetition. Also one must keep in mind — the Senator can make his point in a moment — that there is agreement that all Stages of this Bill must be passed by 3.30 p.m. I am trying to facilitate the House also. I am not trying to stifle debate but just to keep things moving along.
We appreciate that. As we said at the outset, this is one of two critical amendments. We will have no choice if the Minister is not prepared to give an adequate response, but to put this matter to a vote.
Acting Chairman
I am sorry to interrupt the Senator, but you must understand that the Chair cannot force the Minister to make a response. If the Minister is indicating that he does not wish to make a further response, anything you or I say is not going to make any difference.
I was directing the point to the Minister through the Chair.
Question put: "That the amendment be made."
The Committee divided: Tá, 13; Níl, 17.
Tá
- Costello, Joe.
- Doyle, Avril.
- Hourigan, Richard V.
- Howard, Michael.
- Kennedy, Patrick.
- Naughten, Liam.
- Neville, Daniel.
- O'Reilly, Joe.
- O'Toole, Joe.
- Ross, Shane P.N.
- Ryan, John.
- Staunton, Myles.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Seán.
- Conroy, Richard.
- Dardis, John.
- Finneran, Michael.
- Fitzgerald, Tom.
- Honan, Tras.
- Keogh, Helen.
- McCarthy, Seán.
- Mooney, Paschal.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Keeffe, Batt.
- Ryan, Eoin David.
- Wright, G.V.
Tellers: Tá, Senators Reilly and Costello; Níl, Senators Wright and Conroy.
Amendment declared lost.
I move amendment No. 12:
In page 10, between lines 34 and 35, to insert the following subsection:
"(—) Every person who shall proceed to erect any building or otherwise any work to which the Building Regulations apply, shall submit to the Building Control Authority at least seven clear days notice in writing of the date on which the erection of the building or the execution of the work will commence.".
The purpose of this amendment is to recognise that any process of checking must begin with the beginning of the building. The requirement under this amendment is that the person who is proceeding to erect the building shall submit to the authority seven clear days beforehand notice in writing of the date on which the erection of the building or the execution of the work will commence. This seems to be an eminently suitable amendment; but more than that, it is also necessary. I have been through this process myself. The first inspection under the Dublin building bylaw regulations in many cases would be the inspection of the foundations. This fits in very snugly with the general thinking of what is in section 6. The building authority office will have a lot of useful information about the areas in which building is taking place. For example, the information on soil type or depth of top soil or subsoil that would be available in the planning authority to the officers there would allow them to be clear about the areas of their county which would require special attention in terms of foundations. The particular aspect of importance in this would be the foundations. I do not think we need argue the fact that without a firm foundation the house will not see out its time. All we are trying to do here is to ensure that the foundations for the house are properly structured. Therefore, if it would appear to the building authority that in a particular part of the county difficulties may arise from too shallow foundations or whatever, they can then also make sure that those are checked. In other words, if building takes place in an area such as north County Dublin where there might be ten or 12 feet of top soil there is a need for a much deeper foundation than might be required in stoney Kerry, for instance, where it would not be necessary to go to the same depth. Similarly, within a county or area similar differences do arise.
More importantly, the amendment would allow within the office a system of planning to take place — planning to decide at what stage they could check on a particular building. In my own case I was required to inform the planning authority when the foundations were available for inspection. I was also required to inform them when the sub-floors were ready for inspection and when the walls were built. At all levels — I want to stress this because I do not want the Minister coming back telling me it cannot be done — this was done. However, under the proposal here it need not necessarily be the requirement that all these stages would be checked. A requirement to do it could very well get us into aspects of the liabilities mentioned earlier. There could be an understanding that the builder would bring it to the attention of the housing authority that the foundations were due for inspection on a date given and some days a further certificate would issue to say work had reached the sub-floor level and inspection could take place. There would be no requirement on the builder at this stage to wait for this to take place. It would be a matter for the housing authority to decide whether they needed to make the inspection. This is an efficient way of going about the business of inspection. It puts every builder on notice that his or her building may be inspected at any given time. I commend this amendment to the Minister and hope he will look positively on it.
I wish to support this amendment. It is an extremely important amendment. It is difficult to see how matters of construction can operate unless commencement notice is given to the building control authority. Otherwise, there will be a situation where the building control authority will be chasing its tail all over the place trying to find out how this is going to take place.
It is extremely important that the Minister accept this amendment so that the building control authority is aware of what building is being undertaken in the areas in which they operate. Could I ask the Minister himself whether he has any intention, in relation to the building regulations he would be drawing up, of entering a clause to this effect — that there would be a requisite of commencement notice to be given by the particular builder so that the local authority, who would be the control authority, would be in the situation of knowing what was going on. It seems to me absolutely ludicrous that you could possibly have a situation where the building control authority are not made specifically aware that commencement has started on a particular construction. This amendment we are putting forward here contains, in fact, the existing wording in the Dublin by-laws at present, so it is not an unreasonable one. I would expect the Minister either to accept the amendment or to address the question I have put concerning what his intentions are in connection with the content of the building regulations on this matter.
I agree very much with the two previous speakers and I support this amendment. I do not think this is too much to ask of the Minister when you think in terms of the importance of the resources of the building control authority — that they would not be wasting their resources in trying to track down situations after a building has commenced. After all, all that is being looked for here is seven day's notice so that the building control authority would be aware. It is a simple logical step, to my mind. Also, as Senator O'Toole said, where you are talking about multi-storey buildings, where you are talking about poor ground and the difficulty of foundations, there are certain types of buildings which would need to be policed by the authority. Again, I would ask that the authority would be in a position to make selections for random checking. It is a safeguard. We do not want a situation of closing the door after the horse has bolted. It is a simple amendment. It is something that is logical. It is the proper use of resources of the building control authority so that they will not have to come when building has commenced and cause problems and delays.
May I just advert to two points? First, I think there is certain merit in the amendment, given the fact that under the by-laws in Dublin you have a two-day regulation. Could I refer the proposers of this amendment to section 6 (2) (k) requiring the giving of notice to building control authorities. Therefore, the Minister can in fact introduce such a regulation under the Bill itself. Perhaps the Minister might address that when replying to the questions.
I understand what the Senators mean in connection with this amendment. I would point out that under the structural guarantee scheme notice of opening foundations must be given and an inspection carried out before the foundation is poured. A further inspection has to be carried out at roofing stage also. This is a matter which is more appropriate to be included in the regulations. I will give this assurance. I am favourably disposed to meeting that under the regulations. I understand what you mean.
I welcome that commitment. I will have things to say later on about the introduction of regulations under this Bill which I have difficulty with. I just want to make a further point which I did not make when I was making my initial presentation. It is this. I think one of the great reasons for having this is that the building control authority will know that building is going to commence. Under the Bill as it is at the moment, and as I read the Bill, there is no requirement on anyone to give notification that they have begun to build. I think we would all agree — and I think the Minister is agreeing — that that would be a good thing. You then say that for those and for other reasons you take on board the merit of the argument we are making and that you would then feel that it could be covered by regulation. I welcome that commitment, but would the Minister tell the House today that he would, as part of the regulations which will issue following the enactment of this legislation, make it a requirement on local authorities that they would seek commencement certificates?
I appreciate very much the point of view you are expressing. 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, I think this power is adequate to deal with the subject matter of the amendment. I would ask you to trust me in regard to the regulations. I see your point and it can be done by a regulation.
You will take it on board in the regulations, Minister?
I am very favourably disposed.
Come on, Minister. We know you well enough. If you give the commitment we will believe you and we will certainly trust you. You are a man of honour.
Yes.
Thank you.
You have given the commitment and it is now recorded.
You can rely on me because I have never given a commitment that I was not prepared to keep.
I can vouch for that.
Amendment, by leave, withdrawn.
Section 6 agreed to.
Sections 7 to 13, inclusive, agreed to.
SECTION 14.
Amendments Nos. 13 to 18, inclusive, not moved.
Section 14 agreed to.
Sections 15 and 16 agreed to.
SECTION 17.
I move amendment No. 19:
In page 17, line 30, to delete "£10,000" and substitute "£25,000".
What we are seeking to do here is to delete £10,000 as the penalty and insert £25,000 in relation to matters on indictment. This refers to the fact that the Bill was drafted in 1984 and that was the type of sum of money envisaged at that time. Now we are talking six years down the road and inflation has taken place. It is now reasonable to reassess the amount of money that would serve an an appropriate penalty and I am suggesting there that it would be much more appropriate that we put in a figure of £25,000. Even in another area I have been dealing with — the Casual Trading Act passed in 1980 — there was a figure of £5,000. That was to deal with poor, honest-to-goodness street traders who are part and parcel of the colourful life of the inner city. If we cannot up the ante in this respect to increase it to something substantial, where we are talking about very large sums of money being involved, I do not think we are putting in a penalty that has any teeth. Therefore, I would urge the Minister to accept the amendment.
I am satisfied that a fine of up to £10,000 on conviction on indictment is a reasonable penalty taken together with the other penalties provided for in section 17. Apart from the fine, the courts may at their discretion impose a term of imprisonment of up to two years. The maximum amount of a fine is a matter of a judgment. The Government decided that £10,000 was reasonable and this was accepted by the Dáil. The penalties in this Bill are severe and I do not see any reason to change them. Some Members of both Houses of the Oireachtas thought the penalties a little severe, even as they stand now, with the right of the court to impose a prison sentence of up to two years as well as a fine of £10,000. I think it meets the situation.
It may be perceived as being severe by the Minister. In legislation dealing with other areas — cases where there is quite obviously an inability to pay and ends up in people going to prison — exorbitant amounts are imposed, and I just quoted one sample. There is also a substantial period of imprisonment specified in that. I will not press the amendment as we have a couple of amendments to go through.
Amendment, by leave, withdrawn.
Section 17 agreed to.
SECTION 18.
Amendment No. 20 not moved.
Section 18 agreed to.
Sections 19 to 21, inclusive, agreed to.
SECTION 22.
I move amendment No. 21:
In page 19, subsection (4), line 16, after "regulations" to insert "and building control regulations".
I consider this an important amendment. Section 22 (4) states:
In this Act "the operative day" means, in relation to any area, the day on which building regulations first come into operation in that area.
The amendment is to include there "and building control regulations". It is extremely important that the two come into operation on the same day. It is vital. There is not much sense in having a situation where building regulations come into operation without the control mechanism in place. If building regulations are introduced without a control mechanism that would mean that the building industry would be operating in an uncontrolled and potentially dangerous manner. I would like an assurance from the Minister that the two will come together in tandem. He will recognise that it would be a dangerous situation if you had an open-ended situation in relation to the building control regulations with no determined or definite time limit on their coming into operation. Could we get an assurance from the Minister that both would come into operation at the same time?
I would agree with the points made by Senator Costello that both should be introduced so that the industry would operate correctly and not in an uncontrolled and dangerous manner. I support Senator Costello.
I want to be brief on this. I am not ruling out that both sets of regulations will not come into operation on the same day.
Could I ask for some clarification on that? Could we get it in a positive rather than a negative fashion?
I would hope not to be negative. I have to confess that when I first looked at this amendment I had difficulty in understanding the intention. It seems that the intention is to ensure that building control regulations are made at the same time as building regulations. I am far from certain that this is the effect of the amendment. What would be the operative day? Building regulations and building control regulations come into effect on different days.
It is clear from our discussion on the Bill that there is general support for the concept of the building regulations while on the question of building control regulations there is, to put it mildly, something less than general consensus in this House or, indeed, outside it. I have already explained that the powers of inspection and enforcement which the Bill gives the building control authorities are substantial and will enable building regulations to be monitored without necessarily depending on any of the options for control systems set out in section 6. This is not to say that I am in any way against the making of the building control regulations. But I can envisage a situation where it may be possible to make building regulations more quickly than building control regulations because of the more extensive potential difficulties surrounding the latter regulations. My position, therefore, is that it would be wrong to risk holding up implementation of the building regulations until all the difficulties with the control regulations are ironed out. In view of this I do not wish to accept the amendment. I do not want to give a commitment in regard to that but I am not ruling out that I will not be able to put the two in place on the same day. However, I do not want to tie myself because there might be some ironing out to do in regard to that.
I am still somewhat worried about what the Minister has said. He says we just have to get the building regulations into operation — so, obviously, that can go ahead — but that there might be difficulties in relation to the building control regulations. My worry about that is that this could go on ad infinitum. We might have some committee or some commission established to look into the matter of building control regulations, because there is a greater complexity about that matter, and this could just operate and the control mechanism might not be put in place. Once the Bill has passed through these Houses do we have any guarantee? I know the Minister has the best of intentions, but the best of intentions are not good enough. What we need are intentions translated into legislation. I wonder could be get something more specific on that. The Minister has expressed it in somewhat negative terms. We would like it expressed in positive terms. This amendment would be very beneficial to the Bill to ensure that you had the control mechanism put in place once the building regulations were in operation.
I can assure the Senator that it is the intention to ensure that the building regulations and the control system will come into effect at the same time. Certainly, matters such as notice of commencement should come into effect at the same time. I want to get the controls in as quickly as possible.
You envisage that they will come in at the same time, Minister?
That would be my aim.
Amendment, by leave, withdrawn.
Section 22 agreed to.
Sections 23 to 25, inclusive, agreed to.
First Schedule agreed to.
Second Schedule agreed to.
Title agreed to.
Agreed to take remaining Stages today.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I want to thank all the Members of the House for their co-operation and forbearance. It was a very good debate.
Could I also thank the Minister for his forebearance and, indeed, his co-operation and, might I say also, his commitment on certain matters that we were pressing. It is a pleasure to do business with the Minister on most occasions and I should hope that we will get that tightening of the Bill in the regulations that the Minister has indicated.
I would like to say likewise to the Minister who is extremely forthright in his deliberations not just on this Bill but on the Derelict Sites Bill over the last number of days.
Question put and agreed to.