I move: "That the Bill be now read a Second Time."
The purpose of the Bill is to provide a new statutory basis for the making and administration of building regulations. At present the power to make building regulations is contained in section 86 of the Local Government (Planning and Development) Act, 1963. The purposes for which regulations may be made under that Act are those set out in the Public Health Acts, 1878 and 1890, and relate only to matters of public health and safety. However, since the enactment of the 1963 Act a number of factors, such as the need to provide for energy conservation and for a more flexible system of building control as well as developments in the EEC, have rendered the power available under the Act inadequate to deal with the range of purposes for which building regulations are now considered necessary.
Section 3 (2) of the Bill, therefore, expands the purposes for which regulations may be made to include not just public health and safety but also the welfare and convenience of persons in or about buildings. The regulations may also provide for the special needs of the disabled, for energy conservation, for the efficient use of resources and for the encouragement of good building practice. Section 6 contains the provisions relating to the procedures for the administration of building regulations and for a more flexible system of control. I will deal with these matters in greater detail later on. However, before going into detail on the different provisions of the Bill I would like to talk briefly about the background to building regulations and the delay in bringing this legislation before the House.
The suggestion was made by the Tribunal of Inquiry into the Stardust disaster that there had been a 20-year delay in making building regulations because the Local Government (Planning and Development) Act, 1963 authorising the Minister to make such regulations was passed almost 20 years ago. It is no part of my purpose here to defend what did happen — or did not happen — over the years but I feel that I should point out that the power conferred on the Minister in the 1963 Act was an enabling one and that it did not impose an obligation on the Minister to make building regulations by any particular date, or indeed at all. Deputies will be familiar with many similar enabling powers scattered throughout different legislative codes.
These provisions do not confer obligations on Ministers but are intended by the Oireachtas to be a means by which a Minister can decide at his discretion whether and when he should make use of the powers conferred on him. The implication that a period of time which elapses between the enactment of an enabling provision and the subsequent making of the relevant regulations constitutes "delay" on the part of the Minister seems to me to run counter to this intention and, if accepted, would undermine the basic thinking underlying the enactment in the first place of enabling as distinct from mandatory provisions. In such circumstances, Ministers might reasonably be slow to seek enabling powers of the kind referred to and might understandably tend to make provision in the legislation itself for matters that could more conveniently be included in regulations or, alternatively, postpone the seeking of the necessary statutory authority until the details of the regulations had been finalised. In either event, the outcome would be increased delays, inflexibility and loss of efficiency.
In the particular case of building regulations, it is necessary to look at the background to the enactment of section 86 of the 1963 Act. The thinking behind the enactment of this section was that it would be convenient and more efficient to replace the old building by-laws, which were made under the Public Health Acts and which were considered to be too rigid and not conducive to change in building methods and technology. It was decided to provide for a new regulatory code under the legislation dealing with planning, the administration of which could thus be merged with the administration of planning control. There was no public pressure at the time — or indeed subsequently — for the early introduction of building regulations and little or no perception, either publicly or among the many interests concerned with the building industry, that the replacement of the old by-laws was a matter of urgency, whether for reasons of public safety or otherwise. It is also relevant to bear in mind that during the years following the 1963 Act the main impetus in securing the effective implementation of that Act had to be directed towards the comprehensive new system of planning control and development. This involved serious problems of organisation and administration for local authorities and it would have been unreasonable — and probably pointless — to have expected them to take on board at the same time a radically new system of building control.
During the sixties and well into the seventies different views were expressed as to the need for, and merits of, introducing a new building code. One of the main arguments made in favour of such a code related to the desirability of facilitating innovation in building by way of new methods and materials. Another argument related to the question of laying down standards centrally for the sake of uniformity rather than having different standards in local by-laws made by individual authorities. The main argument against the introduction of a new building code related to the extra costs likely to arise from operating it. This situation continued for a number of years and it is only in the last few years that anything approaching strong general support for the making of building regulations has emerged.
The Department, with the assistance of An Foras Forbartha, actually completed the drafting of the regulations in 1976. It was decided, however, not to proceed with the formal making of the regulations at that stage because it was felt that prior consultation with interested bodies in the building industry was essential to secure their general acceptance. For what reason the draft regulations were issued for comments to the various bodies in the industry representing builders and other professions, with a suggestion that the draft should afford a valuable guide to those engaged in the design and construction of buildings. There is little doubt that if regulations had been made at that stage they would have posed serious difficulties not only for the industry but also for local authorities.
Over 500 different comments were received on the 1976 draft and these were considered and, where appropriate, accepted. In addition to the technical comments a more fundamental issue was raised by the building industry. They expressed concern that the proposed system of control as provided for in the 1963 Act would create inhibitory and costly delays in getting construction projects under way and seriously affect efficiency and employment in the industry. The system provided for under the 1963 Act is effectively the same as that applying in areas where building by-laws operate at present and involves the submission of plans for approval to the local authority. It was also clear that the system proposed would involve the recruitment and training of a substantial number of suitably qualified staff in each local authority area, particularly those without existing building by-law controls; that is, all except seven local authorities.
This would have imposed a substantial financial burden on local authorities at a time when, in common with other elements of the public service, they were having to face unavoidable limits on resources. Also, the availability of adequately qualified staff in the numbers required was doubtful. Again, in looking back now at arguments and discussions that were current at the time, it is interesting to note that the primary considerations were matters of efficiency, innovation and costs and that there was little or no perception that considerations of public safety were such as to require the early introduction of the building regulations.
Late in 1980 the evaluation of the technical comments on the draft regulations was completed and an alternative system of control, based on certification by the industry itself, was being developed in consultation with the industry. An amended draft of the regulations was published in March 1981 taking account of the comments received. At about the same time, a draft of a control system based on certification by the industry was circulated to all interested parties for comment. Comments were received and following discussions with interested bodies further drafts of the proposed control system were circulated, the latest being in April 1982. The publication of the Report of the Tribunal of Inquiry on the Stardust fire in July 1982 necessitated a further review of the content of the draft regulations and indeed another look at the proposed certification system.
The tribunal's recommendation that some form of approval by local or central authority would be required in relation to the fire parts of the regulations was particularly relevant in this regard. The tribunal considered that it would be undesirable to rely solely on a certification system where fire safety is concerned. The provision in section 6 of the Bill for the issue of fire certificates by local authorities takes account of the tribunal's recommendation in this respect. The building regulations themselves have also been revised to take account of other recommendations made by the tribunal.
The Bill repeals the relevant sections of the Planning Acts dealing with building regulations and sets out in one piece of legislation the statutory provisions which will apply to the control of the construction of buildings. Section 2 of the Bill designates as building control authorities those local authorities which are fire authorities under the Fire Services Act, 1981. This arrangement recognises the importance of the regulations in relation to fire safety generally and should facilitate close co-ordination and co-operation at local level in dealing with matters relating to the regulations on the one hand and fire safety on the other.
Section 3 contains the power to make building regulations and specifies the buildings to which they will apply and the purposes for which they can be made. Subject to the provisions of section 20 (2), under which existing building by-laws will continue to apply as a transitional provision to certain plans and works, the regulations will apply to all new buildings, including State buildings other than prisons and places of detention, provided the construction work begins on or after the date on which they come into operation.
Provision is made, however, in subsection (10) for the exemption of certain buildings from the provisions of the regulations. It is envisaged that under this subsection, certain specialised buildings such as power stations, temporary buildings, detached domestic garages, small outhouses and like buildings will be exempted from the regulations. The regulations will only apply to existing buildings where they are affected by structural alterations or extensions, by the provision of new services, fittings or equipment or where a material change in the use of a building occurs.
The primary purpose of the regulations will continue to be, as in the case of existing by-laws, to secure the health and safety of persons. However, section 3 extends the purposes for which regulations may be made to provide for the welfare and convenience of persons in or about buildings, the needs of the disabled, energy conservation, the efficient use of resources and the encouragement of good building practice. The matters for which the regulations may prescribe standards are set out in the First Schedule to the Bill and different standards and provisions of the regulations may be prescribed in relation to different classes of buildings or buildings in different areas.
Section 4 provides the power for building control authorities to dispense with or relax particular provisions of building regulations in individual cases. It is difficult to say at this stage whether many cases of this type will arise but it is desirable in any event that there should be a means for permitting a relaxation or dispensation from the mandatory requirements of the regulations where compliance with such requirements could be considered unreasonable in a particular case having regard to the use to which the building might be put. A building control authority will have two months in which to deal with an application for dispensation or relaxation and if they make no decision within that time the application will be taken as being granted.
Certain provisions of the regulations will not be capable of being dispensed with or relaxed and these provisions will be specified in building regulations. It is intended at this stage that the provisions to be so specified will cover only Part A of the regulations which deals with such matters as interpretation, rules, exemptions, application of the regulations and the designation of purpose groups. The section also provides for a reference to independent arbitration where a building control authority refused to grant a relaxation or dispensation or imposes conditions unacceptable to the applicant.
Power is also taken in section 5 for the Minister to dispense with or relax generally any requirement of building regulations where he considers that compliance with the requirement would be unreasonable in relation to any particular class of building operation, works or material. This power is necessary to cater for the development of new methods of construction and materials which do not strictly comply with the regulations but are otherwise acceptable. Its use will probably be required only in isolated cases. Similarly, if a situation arises where it becomes apparent that certain materials or methods of construction are not up to the required standard or constitute a danger to public health and safety, section 12 confers power on the Minister to prohibit the use of that material or method of construction whether generally or in relation to particular buildings or works. This power is considered necessary to ensure that the use of substandard materials or methods can be prohibited where their use is brought to the notice of the Minister.
I would like now to talk about section 6 of the Bill which provides for the making of building control regulations which will deal with the control arrangements necessary to ensure compliance with building regulations. The section provides a flexible power which will enable different systems of control to be applied to different kinds of buildings or to buildings in different areas, or in relation to different provisions of building regulations.
The present system of control which obtains in those areas where building by-laws are in operation is a full approval system involving the submission of plans and specifications to the local authority and their approval by the local authority before work can commence. This system has been criticised by the industry; it is considered to be too cumbersome in that it causes delays and increases cost. From a local authority point of view it is a costly system — and also a system that could not be introduced and operated without significant additions to the staff of many of the local authorities concerned. Section 86 of the Local Government (Planning and Development) Act, 1963 provided for an approval-type system only. The need to provide for a more flexible system is one of the major reasons for the Bill before the House today. Much time, work and consultation with the industry has already gone into devising a new system which will, on the one hand, give the necessary degree of assurance that the requirements of the regulations will be complied with and, on the other, will eliminate as far as possible the kinds of delays that impose costs on the whole community. Such delays can also have a disincentive effect on builders and developers and tend to slow down the whole pace of much-needed investment and development. As I see matters at this stage, if we want a comprehensive system of building control, the only way in which we can achieve it, without embarking on the establishment of an elaborate, costly and time-consuming apparatus of administrative and technical control, is to go for a system of certification by appropriate people.
Accordingly, I am strongly of the opinion that the most expeditious system of administering building regulations is by way of a certification system of control. Under such a system designers and builders of individual projects will, on their own responsibility, provide certificates of compliance with the requirements of the regulations. Apart from reducing delays and costs and allowing simpler administration, such a system can obviously be more easily introduced into areas of the country where systems of building control have not been operated up to now.
Briefly a certification system would work generally along the following lines—
At a specified time before construction work commences, a certificate that the work has been designed in accordance with the regulations will be lodged with the building control authority. The authority will register the certificate and keep it available for reference and inspection by interested persons. Any subsequent variation in the original design will be the subject of a separate certificate which will also be lodged with the building control authority. On completion of the work, a certificate that the work has been completed in accordance with building regulations will be lodged with the authority.
What I have said obviously amounts only to a generalised description of the proposed system which I have given for illustrative purposes only. It is important to realise that the essence of the system is that it will not involve building control authorities in a scrutiny of, or in giving approval for, individual projects. The authorities will have the power to carry out random checks and inspections of buildings but the Bill provides, in section 6 (4), that they will not be under a duty to ensure that buildings erected comply with the requirements of the regulations and that the facts stated in certificates are true and accurate. These responsibilities will instead fall on persons giving the certificates.
The certification system has been the subject of discussion documents which have been circulated to the professions and the industry for comment. Reaction to the general concept of certification has been generally favourable but there are still some important and difficult issues that up to now have not been finally resolved; these relate particularly to questions such as the way in which certificates should be worded and who should be allowed or required to give the certificates. Concern has also been expressed by the professions and the industry generally about the general issue of liability. It is my intention to discuss these matters with the industry and for that purpose I see the Building Regulations Advisory Body as providing a forum through which the consensus views of the industry as a whole on these and other matters can be articulated.
While I regard the certification system of control as the most appropriate system of enforcement, I accept that some further safeguard is needed for the purposes of ensuring compliance with the fire provisions of the regulations, particularly in the case of buildings presenting a high life risk in the case of fire. In this regard the Stardust Tribunal indicated that, while the merits of a certification system as a method of building control in areas other than fire was clear, its adoption in the area of fire safety was undesirable. At the same time the tribunal recognised that sufficient persons with the experience necessary for the operation of an approval-type system were not available, and further, that existing third-level courses were not geared to produce such persons. It also accepted that owners, architects and engineers involved with new buildings should not be relieved of their duty to take care of the safety of other persons.
I fully accept the tribunal's view in these matters. I have therefore provided in section 6 (2) (c) for a procedure whereby the control regulations will incorporate a provision requiring applications to be made to building control authorities for "fire safety certificates" in respect of particular types of buildings. The fire safety certificate will certify in each case that the building concerned will, in the authority's opinion, comply with specified fire parts of the regulations if constructed in accordance with the plans submitted. It is intended on grounds of life safety and practicality to apply this procedure to high-risk premises. Further consideration needs to be given to the range of buildings which will be covered by this procedure but it is likely to apply for example to certain places of public assembly. The range of buildings will be kept under close and continuing review.
It follows from what I have said about the proposed arrangements for certification by designers and builders that while building control authorities will not be required to carry out inspections to ensure compliance with the regulations, they may do so if they consider it necessary in any particular case. It will, therefore, be a matter for the designers and builders to ensure that the work is carried out in accordance with the regulations and, where fire safety certificates are involved, in accordance with the plans which were the basis for the issue of such certificates. Once work is completed, inspections may also be carried out by the local authority, as fire authority, under the Fire Services Act, 1981.
As I have already pointed out, the requirements of building regulations will apply to buildings belonging to or in the occupation of the State other than prisons and places of detention. However, at present it is not considered necessary or appropriate that State, semi-State and local authority buildings generally should be subject to the control system. This exemption will be subject to review in the light of experience of its operation.
It was also proposed in the discussion document circulated by the Department in April 1982 that low-rise housing and small extensions and alterations should be excluded from the scope of the control system for an initial period. The reasoning behind the proposed exclusion in this instance was that it was important to minimise disruption and dislocation of existing practices and procedures in areas where building by-laws had not operated before and that there was already a range of inspections and requirements applicable to housing developments.
The exclusion of low-rise housing and other small works from the control system will significantly reduce the amount of work which will have to be dealt with initially by the building control authorities. However, I would again emphasise that exclusions from the control procedures will not affect the designer's or builder's obligation to comply with the technical requirements of building regulations in relation to the works concerned. In any event, consideration will be given to widening the scope of the control regulations as soon as circumstances seem to make such an expansion practicable.
While I am satisfied that such exclusions are appropriate at present I am also aware that there is a need for up to date statistical information on construction work about to start and in progress and that the exclusions from the control system will leave a gap in the flow of such information that otherwise could be expected from a comprehensive control system. It is important to realise that it is not simply a bureaucratic desire for more and more statistics that is involved in this problem — the reality is that a better and more timely flow of information on construction activity would contribute significantly to the better planning of output and employment trends in the building industry. It may be that a simple form of notification of building starts and completions can be devised that will be sufficient to meet our information needs in the short term. This is something that I will be considering in connection with the organisation of the control arrangements.
As I have indicated, there are still some detailed matters to be worked out in relation to the control arrangements. I am satisfied that it would not be right to proceed with decisions on these matters without first consulting the interests involved and this is something I propose to arrange as soon as practicable through the medium of the proposed Building Regulations Advisory Body.
The provisions of sections 7, 8 and 9 enable building control authorities to serve a notice requiring action to be taken to ensure compliance with building regulations. The provisions of those sections are necessary if building control authorities are to be in a position to deal with breaches of the regulations that come to their notice. The powers taken are similar to those contained in the Planning and Fire Services Acts.
Section 10 provides for inspections of buildings by a person authorised for the purpose by a building control authority. The section does not specifically impose any obligations on building control authorities but, nonetheless, it will be incumbent on them to consider objectively, in what way and to what extent they should ensure the exercise of the powers conferred by the section, taking account of their financial and other resources and of any other relevant factors.
The power in section 11 for a building control authority to seek an order from the High Court is additional to that contained in the sections dealing with the enforcement notice. This power is necessary to deal with an emergency situation where a building control authority may consider that, because of the risk to health or safety arising from construction work, it would not be prudent to go through the procedures necessary for the service of an enforcement notice under section 7. The High Court order may require that a building be made safe and prohibit its use until this is done. A similar provision is contained in the Fire Services Act, 1981.
The Building Regulations Advisory Body, which is provided for in section 13, will be a body broadly representative of the building industry. Proposed amendments to the regulations may be referred to the advisory body for its comments and it will also be open to it to initiate amendments. Deputies will note that the section is drafted in fairly broad terms; this is deliberate as there is a wide range of issues on which the advisory body might be asked to advise. Secretarial services for the advisory body will be provided by the Department.
Penalties for offences under the Act are generally similar to those under the Fire Services Act, 1981 and will depend on whether an offence is of a summary or indictable nature which in turn will depend on the different circumstances of each particular case. Offences such as non-compliance with building regulations or with the terms of an enforcement notice under section 7 or particular offences which may be specified accordingly in building control regulations may be indictable offences and will carry severe penalties — a maximum fine of £10,000 and or two years imprisonment.
The types of offences which may be specified in building control regulations as being liable to conviction on indictment would be of a serious nature such as submitting a certificate of compliance with building regulations to a building control authority knowing it to be false. Summary offences will be liable to a maximum fine of £800 and/or six months imprisonment and in the case of a continuing offence, to a fine of not more than £150 for each day on which the offence is continued after conviction. There is also provision that summary proceedings may not be instituted more than five years after the building is completed. This provision is in response to the industry's concern that they would otherwise be open to prosecution for an unlimited period in respect of even small breaches of the regulations.
In addition to any penalties which may be imposed by the courts, the Bill also provides that any person found guilty of an offence under the Act will not be entitled to sign certificates of compliance with building regulations nor have such certificates accepted by building control authorities for a period of two years where the offence is summarily tried and for ten years where it is an indictable offence.
Because of the existence of building by-laws in some areas, it is necessary as a transitional measure to provide in certain circumstances for the continued operation of building by-laws after the date on which building regulations come into operation. The particular cases involved are those set out in subsection (2) of section 20. Section 20 is the general transition section but there is one provision, subsection (7), to which I should like to refer. Deputies are probably aware that, in areas where building by-laws are operated, small building works, particularly house extensions, have often been carried out in the past without by-law approval. The fact that by-law approval has not been obtained and cannot be obtained in retrospect under existing law has caused problems in house sales as evidence of compliance with by-laws may have to be shown to intending purchasers. Delays in the completion of house sales have occurred, very often through no fault of the vendor who may have bought the house when evidence of by-law approval was not required and this has caused hardship in a number of cases. I consider that it is reasonable, therefore, to use this opportunity to provide that, where work carried out prior to 9 February 1984 did not comply with by-laws or any relevant statutory requirement, no proceedings shall be taken in respect of such non-compliance unless a building control authority consider the work to be a danger to public health or safety and serve a notice to this effect on the owners within six months of the date the building regulations come ito operation. Deputies will note that this "amnesty" operates only in respect of work carried out prior to the date of circulation of the Bill, 9 February 1984.
Before my final remarks there are just two other points I should mention. First, some sections of the industry felt that the legal terminology used in the proposed building regulations, which is necessary to ensure their enforceability in law, made them difficult to interpret. To assist the industry in this matter, An Foras Forbartha were asked to provide a guidance manual that would explain the different requirements, by way of diagrams, sketches, etc., in a way that would be familiar to the industry. I understand that the manual is nearing completion. As soon as it is available, I propose to publish the final draft of the proposed regulations so that the industry will have both documents available to them for study.
Secondly, I want to refer to the educational programme, the purpose of which is to familiarise the building industry with the technical provisions of building regulations. This programme has been on-going for some time now and is being co-ordinated by An Foras Forbartha through the regional technical colleges and through other agencies. I understand that the reaction to courses dealing with the regulations has been favourable and that many of the anxieties formerly expressed by the industry have been largely dispelled. When the guidance manual and the proposed building regulations are available, the educational programme will be further expanded.
I am satisfied that this Bill provides a suitable framework for the introduction of a comprehensive and flexible system of building regulations and building control.
I look forward to hearing the views of the House and I commend the Bill to it.