BCAR ‘opt out’ – The Consequences

With just over four months elapsed since the second amendment to the Building Control Regulations, which allows an option to ‘‘opt out’’ of the need to appoint an Assigned Certifier (AC), reports from the Local Authority Building Control, states that there was a sharp fall in the submission of Commencement Notices before 1st September introduction, with a resurgence in the submission of Commencement Notices once the ‘opt out’ became available.

Current figures at this early stage show nine out of ten new single dwelling owners choosing the ‘opt out’ route. This comes in spite of the strong opposition to the reduced level of oversight voiced by SCSI, RIAI and Engineers Ireland, members of which are the only people who can be appointed to the Assigned Certifier role.

The removal of the requirement to appoint an Assigned Certifier shows the strength of opposition to the requirement and the power of representation with a general election pending. So what are the issues associated with the non-appointment of an Assigned Certifier?

The regulations require that you still obtain an undertaking from your builder that he will execute the works in accordance with the Building Regulations. However, this requirement was always in place since the introduction of Building Regulations in 1992 and we are all well aware of the legacy of a self-regulated building industry.

There are some indications that lending institutions are insisting on the more stringent requirement to appoint an Assigned Certifier before they will allow draw-down of funds and this reinforces the view that there is a risk associated with the ‘opt out’ route.

If one compares two identical completed properties, one with the benefit of full certification under the Building Control (Amendment) Regulations (BCAR) and one constructed under the ‘opt out’ route, if history guides us, there will be issues of non-compliance presented in the ‘non-BCAR’ property. In my experience, these issues of non-compliance can range from significant non-compliance in terms of fire precautions to more typical non-compliant issues such as, incorrectly spaced railings to staircases, non-toughened low level glass, low head heights over staircases, damaged radon barriers, incorrectly installed wastewater treatment systems and the like. It can be perceived therefore that the element of additional risk associated with the non-BCAR property, will bring with it, a negative impact in terms of property value.

Once the property is registered under the ‘‘opt out’’ provision of the regulations, there is no recourse at a later date to enable full certification under the Building Control Management System operated by the Local Authority. It is as yet unclear how conveyancing solicitors will deal with the new regime and if certificates of ‘substantial compliance’ will satisfy them in terms of compliance with the regulations. The fact that building contractors still have to provide an undertaking with regard to completion of the works in accordance with the regulations, may require that contractors must put in place suitable Professional Indemnity Insurance before their certificates are accepted by solicitors as adequate consumer protection.

Every building is different and prescriptive regulations without recognition of generally accepted tolerances could make the regulations unworkable and it is generally recognised that some softening of the requirement for ‘absolute compliance’ was necessary. However, the ability to ‘‘opt out’’ is an unwelcome throwback to a failed system.