Burden on Designers and Architects

The new building control regulations in Ireland were crafted following a perceived failure and ineffectiveness of the building control system in many aspects. One would expect that such reforms would be positively received and embraced by all, but that has not been the case. Arguably, they have placed a significant burden on designers and architects who have demanded a review of the said regulations, which prompts the question: what is their case?

Perhaps, better insight into this matter could be achieved by highlighting the provisions of the Building Control Acts (1990 and 2007) that define the building control system framework and the subsequent amendments/ regulations that have generated a relatively heated debate. The Acts provide for the timely making of regulations in construction works that deal with matters like building standards, fire safety, workmanship, fuel and energy conservation, and accessibility for the disabled. It also provides for crafting of necessary regulations involving commencement notices, certificates for fire safety, and fees and certificates for accessibility of people with disability. These include administrative authority from building control bodies. Important to note is that, the Acts give powers of inspection and enforcement to the mentioned authorities in control of the constructions field.

In a general sense, the building regulations seek to set out technical requirements perceived necessary for the design and subsequent construction of all relevant works. They are spelt out in wider, functional terms as opposed to prescriptive or performance ones. For instance, requirement B1 states that ‘Design and construction of a building shall be in such a way that it provides adequate means of escape to safety in case of a fire outbreak in the building’. The general layout of these requirements may not be so adequate. As a result, the Department of the Environment has published them in detailed and more specific terms in the Technical Guidance Documents.

More specifically, the regulations are administrative and procedural. They primarily seek to promote the observance of the requirements by supplementing the fundamental powers of enforcement and inspection assigned to the building control authorities by various sections of the Acts mentioned above. They achieve this by requiring that works commencement notices be lodged with the said power. It is also required that certificates of fire safety and disability access be obtained for all buildings to which a crucial section (Part III) of the Building Control Regulations Act 1997 does apply. In summary, the disputed new amendments/regulations require that compliance drawings and relevant documentation be submitted to building control authorities at the start of the Commencement Notice stage. They also demand that mandatory compliance certificates be signed by the designer, and undertaken by the builder prior to the intended construction. In addition, they require that an inspection plan be set out and executed at major stages of the construction by an Assigned Certifier, who could be a registered engineer, architect or building surveyor. This officer would also be required to sign mandatory compliance certificates upon completion of the building.

Having had an overview of the regulations, it may now be appropriate to examine why architects and designers have opposed their terms.  Critics of these regulations have argued that those behind their drafting did not have improvement of actual construction standards as their cardinal objective; rather they only wanted to create circumstances where someone would always be held accountable if anything went wrong in the construction process, even long after the building had been completed.

According to some experts in Matheson Law Firm, perhaps their strongest point in this matter is the failure by the government to appreciate that a project, such as constructing a building, involves division of roles. For this reason, they argue that the ultimate liability does not rest with one person or a few individuals. It is, therefore, their view that the regulations fail to place an onus on individuals procuring or commissioning construction of a building to maintain and observe professionalism at all stages, by effectively retaining professionals at each level. They do not reflect liability proportionality as the case should be, and contrary to the expectations, are not founded on motivation for adequate inspection levels. Any blame has been squarely placed on architects and designers, as the local authority seems not to be given any responsibility that comes with accountability. Rather, the regulations are a mere convenience for them. In this context, they are not even the least beneficial to the public, since, they in their current terms, cannot guarantee any quality work as far as construction is concerned.

The architect is usually the team leader whose ideas and design flows form the basis for the works of others in the building process. This is normally the case in buildings designed for personal use, as opposed to huge structures and manufacturing facilities. In cases of specialist buildings where the focus of accommodation is on functions or processes, the design team head is the engineer. In this context, the right certification of any building arises from the design, the construction, and the completed work, being compliant with building regulation requirements. The booklet of certificates is based on the architect’s opinions, and as such, the design is certified by competent specialists. The completed/built work is certified by astute contractors and sub-contractors. Specialist suppliers also endorse the completed work. In this light, their combined certificates form a chain of liability and responsibility stated as Schedule (A) Assurances in the context of the architect’s opinion. Clearly, the burden should not solely rest with architects and designers.

Each professional specialist should take responsibility for sections of the building designed by their firm. For example, there may be specialist External Cladding and Fire Engineering solutions that may involve aspects of design where the engineer or architect has to do some co-ordination, but does not necessarily specify each in detail. Each professional should, therefore, issue compliance certificates confirming that every detail or element of their design has complied with the relevant laid-down building regulations associated with that design. The architecture then issues the overall certificate to confirm overall compliance. This same procedure is followed when it comes to contractors and sub-contractors. The regulations are ‘draconian’, since they ignore the implications of this procedure. It is, indeed, effective since it places responsibility on people as regards their role in the construction work, and since professionals issue their own certificate for each element, they are held accountable to that extent. As such, each participating firm or company is aware that it is completely liable for its work, be it in building tasks, or design. This keeps them alert and results to a high quality results, since each naturally seems to monitor one another.

Clearly, the regulations will lead to a lot of injustices, since they have placed responsibility for all other participating professionals, contractors, and suppliers solely on designers and architects. This is also the view of some legal experts at the McCannFitzGerald law firm. The architect or designer carries all the blame so that no longer will each professional involved be required to ensure competence on their part for a complete and perfectly done piece of work.  This possibility of injustice and unnecessary burden was evident a few years back when a multi-storey building that was under construction collapsed, fatally injuring some of the construction workers. A case was initiated, and since that seemed to be more of a structural failure, the focus of the trial was mainly on the role of the structural engineer. An inference was made that he had competently designed the stairs and corresponding support system. Following this development, the focus was shifted to the sub-contractor who had been responsible for supplying and fitting the stairs. Interestingly, it was discovered that an insufficient number of bolts had been used in fixing them, besides being too short. Consequently, liability for the collapse was placed upon the engineering firm that supplied the stairs, while the engineer was exonerated.

Quite unfairly, the entire burden has now been placed on architects and designers. This is clearly not appropriate since these are only specialists who merely do design work. Where instead they are held liable, they have no defense in court under these regulations. This is a travesty of natural justice since well-established precedent is denied. The regulations are indeed counter-productive as no-one apart from the certifier carries any legal responsibility. To address this, one would advise that liability and responsibility should not solely rest with the private sector. Relevant local authorities should maintain oversight for all activities going on within their area of control. Such involvement has to begin prior to the start of the construction work to allow for proper ground assessment. This would also ensure necessary resources are pooled in identifying and addressing any potential hazard sources. Then unannounced spot checks should be conducted during construction in collaboration with the Healthy and Safety Authority, continuing to the period after completion to see to it that there is complete finishing and proper commissioning. All firms and persons should do more and be responsible in their areas of specialization and competence. Those who have been given commissioning responsibility should be compelled by law to strictly hire highly qualified and competent contractors who must be registered. These should then retain high competent professionals who must carry out a quality design. They should also conduct proper and sufficient inspection before, during, and after construction preceding any form of certification. Relevant local authorities should ensure that the law is properly followed. They should supply necessary information as far as environmental services and conditions are concerned. This way, good governance will bring forth quality in built work.