Definition of Substantially Completed

Poor Uncle Tom

onq wrote: »

This is a bit of a gray area, but compliance with the permission seems to be the issue.

to clarify, my understanding is that a house must be 'substantially completed' within the life of the planning permission (5 years in this case). The term 'substantially completed' was defined by An Bord Pleanala as the house having its walls completed. This was done when the LA's were directed to charge for developments which were not 'substantially completed' by a certain date (I will loke up the date on Tuesday when I'm back in the office and I should be able to get some references to the Act also). So the term 'substantially completed' is universal, no grey area.

onq wrote: »

I won't certify a house unless its habitable and fit for the intended purpose - an unsealed house with no services, kitchen or bathroom isn't a house, its a shelter.

There are many cases in which a Certificate of Partial Completion (or Certificate of Compliance for all works to date, say, 24th October 2009) is required by a Solicitor, registration of title if a property is being sold mid way through a build, etc., no one is intimating that this means all works are completed.

onq wrote: »

Some LA's may take a different view of what constitues compliance for the purpose of taking enforcement action, but that doesn't mean the house was complete on the day, just that they're not going to go after it.

This is irrelevant.

onq wrote: »

RE the need to go for an extension of duration planning, this is where talking to the planner comes in and your assertion that when the roof is one its deemd ot be complete may hold up.

But I wouldn't take it as read, especially if considerable site works are to be done. Developments is classed as works on over or under land and this includes the siteworks. The internal works may be classed as exempted dvelopment, but I wouldn't assume it to be so - some planners within an LA may differ, particularly where the build should have taken perhaps a year to complete and its now coming in at the very end of the five year period.

I presume you mean application to extend planning duration, each case is decided on its own merits, usually by the planning officer who decided the original planning application (if that person is still in the same offices )

onq

Poor Uncle Tom wrote: »

to clarify, my understanding is that a house must be 'substantially completed' within the life of the planning permission (5 years in this case). The term 'substantially completed' was defined by An Bord Pleanala as the house having its walls completed. This was done when the LA's were directed to charge for developments which were not 'substantially completed' by a certain date (I will loke up the date on Tuesday when I'm back in the office and I should be able to get some references to the Act also). So the term 'substantially completed' is universal, no grey area.

I would really appreciate that reference - I've googled for a while now and cannot find the definitive comment. I would be happy to learn the Bórd's position on this matter.

I'm not disputing your position on this BTW, as I noted earlier even in the lesser context of what a local authority might consider appropriate as opposed to the "higher court" of the Bórd.

However in relation to my previous comments I was pointing out that the term means different things in different contexts. This is in fact the case.

"Substantial Compliance" in the Architects Opinion of Compliance wording means "saving and excepting minor snag items which in the opinion of the certifying architect would not warrant the issuing of enforcement proceedings by the local authority" - or words to that effect.

I could be wrong but I'm fairly certain that leaving the roof off wouldn't come under the definition of a "minor snag item".

There are many cases in which a Certificate of Partial Completion (or Certificate of Compliance for all works to date, say, 24th October 2009) is required by a Solicitor, registration of title if a property is being sold mid way through a build, etc., no one is intimating that this means all works are completed.

I don't think this is the issue here - we're talking substantial completion not partial completion, although your definition above of a house being "substantially complete" in planning terms sounds very like partial completion under the building contract to me.

Although I haven't issued certificates of partial completion where property transfer was envisaged mid-programme, I have seen certificates of partial completion issued for commercial developments [for handover of sectionsphases to the developer to allow fit out to commence] and I have issued them for apartment blocks [to allow furniture to be installed].

In both cases the sections being released were substantially complete and commissioned in relation to services and fire escape routes insofar as they affected those parts.

There was no issue of the roof being left off.

This is irrelevant.

As I've just shown above, there are differing opinions in relation to the same phrase and I know within one local authority there are differing opinions in relation to matters already ruled on by An Bórd Pleanála. As I said, I'd appreciate the reference you spoke of.

I presume you mean application to extend planning duration, each case is decided on its own merits, usually by the planning officer who decided the original planning application (if that person is still in the same offices )

D'oh yes indeed.

Many problems are caused by different planning officers reviewing the one case, and by applying to extend planning duration after the development plan has changed.

I look forward to getting that reference next week, if its not too much trouble.

TIA

ONQ.

Poor Uncle Tom

onq,

I did not want to drag brundle's opening post any further off course, so I have started this thread here to debate the 'substantially completed' issue.

I made a reference to An Bord Pleanala in my post above. As I said I was away from my office and my memory did not serve me well, It should have been a reference to the Planning and Development Act, 2000.

I found the following Section 96 of the 2000 Act,
http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0096.html
Paragraph 15, refers.

I realise this is in connection with the payment of contribution in connection with the provision of social and affordable housing but it is the explanation as to having the external walls completed by the expiration of the planning permission that I am interested in here.

This was further amended in the Planning and Development (Amendment) Act, 2002 Reversing Withering Provision / Imposition of Levy.
The above amendment Act came into force on the 24th December 2002 and provided for reverse of the impact of Section 96(15) of the Planning & Development Act, 2000.

Section 96(15) provided that permissions for residential development granted after 25th August 1999, but before the housing strategy is included in the relevant development plan in accordance with the Act, and to which Part V of the Act would have applied had the housing strategy been incorporated when the application for planning permission was made, would last until the 31st December 2002 or for 2 years from the date of grant of Planning Permission, whichever was longer. Planning permission would expire for those houses for which the external walls had not been built by the relevant date.

The amended Act removes that provision and provides that the normal rules concerning the duration of permission will apply to those permissions. In return for extending the duration of permissions affected, developers will be required, as a statutory condition of planning permission, to pay a levy in respect of each residential unit for which planning permission would have expired, if the 2002 Atc had not been passed. This is not a levy on all units built under these permissions. It applies only to those the life of which is only being restored, ie., those for which the walls were not completed to roof level by the date the permission would have expired.

It is my belief that the above lead to houses becoming universally termed as 'substantially completed' once they reached the stage of having walls completed in the eyes of the Local Authorities.

sydthebeat

Poor Uncle Tom wrote: »

It is my belief that the above lead to houses becoming universally termed as 'substantially completed' once they reached the stage of having walls completed in the eyes of the Local Authorities.

that has been my experience of how LAs deem "substantially complete"...

Although in a case i had of a housing development, the council deemed the original 'substantially complete' as 75% of the development was finished, whereas the remaining 25% units had only the base floor in. They subsequently granted the extension of planning duration.

Poor Uncle Tom

hopefully, without sounding too much like a cynic...

I think the motive by our Government here syd, was not the definition but rather the chance for collection of extra revenue, by tightening deadlines.

Mellor

Another place that substantially complete comes up is the transitional arrangements of new building regulations. And as with "potential grey terms" in other legal documents, the main text is normally preceded by a definitions.

TGD Part L (dwellings) wrote:

However, the foregoing document may continue to
be used in the case of dwellings:

- where planning approval or permission has been
applied for on or before 30 June 2008, and
substantial work has been completed by 1 July
2009.

Substantial work has been completed” means that
the structure of the external walls has been erected.

This definition is repeated in many other TGDs, while its in relation to a different area, its still a deadline (albeit a national one) and it still uses the phrase substantial work has been completed.

sinnerboy

Who recalls the 2 year "withering rule" from the 2000 planning act ? Whereby permissions for housing developments would lapse after 2 years .

It was an effort to make developers "get on with it" and build instead of hoarding land banks . It was repealed in 02 ( as far as I recall) so it never took affect .

Anyhoo - in the interim the RIAI sought an expert legal opinion at this time as to what constituted substantial completion . Answer - completion of external walls

So have a look back over the TGD's and the transitional arrangements . Those dated 02 onwards define substantial completion in these terms - earlier TGD's do not .

Ooops ! that's what PUT already said

.

archtech

sinnerboy wrote: »

Who recalls the 2 year "withering rule" from the 2000 planning act ? Whereby permissions for housing developments would lapse after 2 years .

It was an effort to make developers "get on with it" and build instead of hoarding land banks . It was repealed in 02 ( as far as I recall) so it never took affect .

My understanding of the "2 year withering rule", related to the introduction of Part V, so that there wasn't an overlap of planning permissions which were and weren't subject to Part V.

Sinnerboy you are correct in saying it was repealed, however where this happened, developments were subject to Part V where the works weren't substantially completed.

Getting back on topic, in terms of "substantially completed" for the purpose of planning and building regulations having the walls erected is considered susbtantially completed, however for banks and financial institutions its another story.

onq

Without meaning to crush any egos on this, my experience of expert legal opinions is that they come at €1k to €2K each and they may differ.
our adversarial Courts system is sustained because they differ.
An individual experot opinion is therefore of limited value.

What you need is a definitive judgement of a High Court, a Guideline from the DOE or even a working Guideling from a local authority.

I spoke to a lady in the Planning Office in Dun Laoghaire Rathdown Co Co on this subject yesterday and she confirmed their position that for an application for extension of duration of planning, the building must be complete to roof level.

Not wall plate level - that's roof level as in ridge level.

Now I recalled to her that various stages used to be thought of as sufficient to allow an application for extension of duration to be made including varying requirements such as "up to Ground Floor Window Sill" and "Up to First Floor Level", but she confirmed the above position.
Feel free to check and I'd welcome any clarification and I'd also note that the planners in DLRCoCo may differ with planners elewhere. I am not presenting this as a definitve DOEHLG Guide or a High Court Decision.

I think there is more useful discussion to be had on this point alone and I would ask that references be posted where cited, not just "in the TGD's" because that's a lot of ground to cover.
I cannot remember substantial completion being covered in any TGB BTW, but perhaps I missed that part.
Mods, if you think this needs to be moved, please feel free and apologies if I've wandered off topic.

ONQ.

onq

Poor Uncle Tom wrote: »

onq,

I did not want to drag brundle's opening post any further off course, so I have started this thread here to debate the 'substantially completed' issue.

No problem at all - good thread husbanding.

I found the following Section 96 of the 2000 Act,
http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0096.html
Paragraph 15, refers.

I realise this is in connection with the payment of contribution in connection with the provision of social and affordable housing but it is the explanation as to having the external walls completed by the expiration of the planning permission that I am interested in here.

<nods>

The pre-2000 Act limit of 5 years for taking enforcement action arose in a High Court Decision about an advertising hoarding and was deemed to be the case long before being included in the 1994 Regulations.

This was further amended in the Planning and Development (Amendment) Act, 2002 Reversing Withering Provision / Imposition of Levy.
The above amendment Act came into force on the 24th December 2002 and provided for reverse of the impact of Section 96(15) of the Planning & Development Act, 2000.

Section 96(15) provided that permissions for residential development granted after 25th August 1999, but before the housing strategy is included in the relevant development plan in accordance with the Act, and to which Part V of the Act would have applied had the housing strategy been incorporated when the application for planning permission was made, would last until the 31st December 2002 or for 2 years from the date of grant of Planning Permission, whichever was longer. Planning permission would expire for those houses for which the external walls had not been built by the relevant date.

The amended Act removes that provision and provides that the normal rules concerning the duration of permission will apply to those permissions.
<snip>

It is my belief that the above lead to houses becoming universally termed as 'substantially completed' once they reached the stage of having walls completed in the eyes of the Local Authorities.

<nods>

I think you're right - I trawled the Acts for other references and found none.

Section 96 (15 is worth posting in full to this thread

(15) A permission granted under Part IV of the Act of 1963 or under Part III of this Act pursuant to an application made after 25 August 1999 and to which this Part would have applied if the application for permission had been made after the inclusion of a housing strategy in the development plan under section 94 (1), shall cease to have effect on 31 December 2002 or on the expiry of a period of 2 years from the date of the grant of permission whichever is the later, as regards—

(a) where the development to which the permission relates is not commenced by that date or the expiry of that period, the entire development, and

(b) where the development to which the permission relates is commenced by that date or the expiry of that period, any portion of the development consisting of buildings the external walls of which have not been completed, but without prejudice to the obligation on the person carrying out the development to fulfil the other requirements of the permission in relation to so much of the development as is not affected by this paragraph.

While this is not definitive and is now repealed, it defines a principle of planning law, which could be relied upon by an applicant seeking to make an application for Extension of Duration of Permission.

Because it is no longer current law however it is open to interpretation, but it would be a very poor decision by a planner to refuse the right to make an application based on this.

However I note that this principle centres on the right to continue to build, just as an application for Extension of Duration of Permission centres on that same right.

It does not suggest that the house is substantially complete within the meaning of the Act or per the requirements of a standard condition one wording "The development shall be carried out in accordance with the plans and particulars lodged, etc." It accepts that the intention to complete has been shown and that most of the work has been done.

I am of the opinion that for the house to be substantially complete in terms of the planning permission, it must have its structure and external envelope completed within the five year term - or, after an application for extension of duration, within the extended term. It is not substantialy complete within the meaning of the planning acts otherwise.

This completes and defines matters as they affect the public domain and planning law, but does not imply substantial completion for the purpose of issuing the architects Opinion of Compliance with Building Regulations.

Internal works may be covered by section 4(1)(h) of the 2000 Act, but I personally would resist issuing an Opinion of Compliance with Planning Permission where the house has no working toilet, kitchen, bathroom, or services.

Even in Commercial Developments, where Shell Only Opinions on Compliance may require to be issued for Units ready for occupation but not fitted out, (i) the services must be commissioned ready to be connected and (ii) to comply with the Fire Cert a smoke detector should be fitted to each unit, connected to the overall FD&A system and commissioned.

I would resist issuing shell-only Opinion of Compliance for Houses and Apartments.

Many, many thanks for finding that reference Tom. I think this has been a very useful exercise for me personally and I hope for others, as it focussed my attention on a matter I had little direct experience [my permissions have never run up against the limit] - but of course we may yet be corrected by someone offering definitive comment.

ONQ.

sinnerboy

When is building completed ?

This will be tested now in our chilly economy . Are half build properties going to lose permissions ? Well - perhaps the little guy / one offs may . I doubt it will happen with larger developments .

Perhaps regulation of any sort is doomed to failure given human nature is to avoid it's affects we we perceive it does not serve our interest .

Over simplification of regulations can render them inadequate whereas over complication of regulations can and does lead to confusion and disputes arising out of misunderstanding or misinterpretation .

So when is a building completed ? It can depend on who's asking . And how deep their pockets are .

For the record - my interpretation , is wall plate .

Poor Uncle Tom

onq wrote: »

.....my experience of expert legal opinions is that they come at €1k to €2K each and they may differ.
our adversarial Courts system is sustained because they differ.
An individual experot opinion is therefore of limited value.

What you need is a definitive judgement of a High Court, a Guideline from the DOE or even a working Guideling from a local authority.

I spoke to a lady in the Planning Office in Dun Laoghaire Rathdown Co Co on this subject yesterday and she confirmed their position that for an application for extension of duration of planning, the building must be complete to roof level.

Not wall plate level - that's roof level as in ridge level.

Now I recalled to her that various stages used to be thought of as sufficient to allow an application for extension of duration to be made including varying requirements such as "up to Ground Floor Window Sill" and "Up to First Floor Level", but she confirmed the above position.
Feel free to check and I'd welcome any clarification and I'd also note that the planners in DLRCoCo may differ with planners elewhere. I am not presenting this as a definitve DOEHLG Guide or a High Court Decision.

I think there is more useful discussion to be had on this point alone and I would ask that references be posted where cited, not just "in the TGD's" because that's a lot of ground to cover.
I cannot remember substantial completion being covered in any TGB BTW, but perhaps I missed that part......

I agree in principal with this, but I have been given an extension of duration of planning permission by one year on a house with walls completed, not roof, this was under the amended Act, in 2006.

I do have to say though, while I agree with the above in principal, we can not get into a discussion on the legalities of the Act as we would get into trouble for breaching the charter.

Poor Uncle Tom

Fundamentally I see it as follows:

1. Generally a building is substantially completed in the eyes of the Local Authority at Walls Completed Stage.

2. Generally a building is substantially completed in the eyes of a Financial Institution when it has all systems operational, is liveable and has its Certificate of Compliance.

There is a difference between having a building 'completed' and 'substantially completed' when it comes to certification and I think it is the difference between having a 'qualified' or 'unqualified' Certificate of Compliance. For certification purposes 'substantially completed' has to mean a whole lot more than walls completed, imo.

onq

Poor Uncle Tom wrote: »

Fundamentally I see it as follows:

1. Generally a building is substantially completed in the eyes of the Local Authority at Walls Completed Stage.

That is only the case when assessing whether it is eligible to be granted an extension for duration of time.
It manifestly is not substially completed and definitely not compliance with its permission while it has no roof on it.
Completion in terms of the permission refers back to the conditions and whether the plans and specifications are referred to - this is usually done in Condition 1.
For that the LA will require to see as a minimum that the external envelope is complete and I'll bet there are planners who'll want the internal layout complete before you change it.
This also applies to exempted development works - for example where kitchen extensions are built as the house is going up - these are not exempted development because Condition 1 hasn't been complied with.

2. Generally a building is substantially completed in the eyes of a Financial Institution when it has all systems operational, is liveable and has its Certificate of Compliance.

Oddly enough, here you go a little too far in my experience.

The financial institutions rely on the Solicitors and perhaps on their own surveyors although that latter practice may have fallen into disuse with so many houses being completed in the last five years.

Its usually the purchaser's solicitors who require the certs to back up the notification from the builder under the contract that its ready for inspection and snagging.

If the purchaser's solicitor is remote from the action, he may simply refer the snag list to the purchaser for his attention, who may not have retained the services of his own inspecting architect and the issuing of the certs specifically exclude snag list items from their governance.

I've seen houses handed over with agremeent by all parties without a working kitchen because the purchaser is going to fit their own and its been delayed, same for bathrooms and toilets where the goods delivered were incorrect or where held up in customs.

There is a difference between having a building 'completed' and 'substantially completed' when it comes to certification and I think it is the difference between having a 'qualified' or 'unqualified' Certificate of Compliance. For certification purposes 'substantially completed' has to mean a whole lot more than walls completed, imo.

All certificates are qualified - much to the chagrin of High Court Judges.

The fact is that clients won't pay an architect to be on site every day and make a photographic record of all works, so there are qualifications as to what has been witnessed and thus what is being certified.

Even the builder cannot guarantee the work of every workman.
Recall the case of the concrete stairs that collapsed a few years ago and it was found that the wrong fixing bolts had been used - even though the guy that installed them was years in the business and the sub-contracting firm was a recognised firm in good standing.

At some point we might attempt a definition of Compliance, Completion and the Substantial and Practical variations on those terms and what they might mean. It would be service to the industry if we got it even half way right - and there would STILL be people who would disagee with us <LOL!>

ONQ.

Poor Uncle Tom

When I started this thread I just wanted a debate on the meaning of 'Substantially Completed'. Where the planning Act does not specifically define a term, then it is open to interpratation by anyone/body carrying out works under that act. With the benefit of time here (since 2002) I believe as I posted lastly, that there is more then one definition of 'substantially completed' in terms of a building, depending on who/what body it suits. That is to say, everyone who posted here so far is correct and can show their interpretation is correct using examples.

onq wrote: »

That is only the case when assessing whether it is eligible to be granted an extension for duration of time.
It manifestly is not substially completed and definitely not compliance with its permission while it has no roof on it.

A building can be "in compliance with the conditions of its planning permission in so far as is possible at this stage" at any given time during the construction of a build, whether a building has a roof or not.

onq wrote: »

Completion in terms of the permission refers back to the conditions and whether the plans and specifications are referred to - this is usually done in Condition 1.
For that the LA will require to see as a minimum that the external envelope is complete and I'll bet there are planners who'll want the internal layout complete before you change it.
This also applies to exempted development works - for example where kitchen extensions are built as the house is going up - these are not exempted development because Condition 1 hasn't been complied with.

I agree, but we are not discussing Completion, we are discussing Substantially Completed, a very different animal indeed.

onq wrote: »

Oddly enough, here you go a little too far in my experience.

The financial institutions rely on the Solicitors and perhaps on their own surveyors although that latter practice may have fallen into disuse with so many houses being completed in the last five years.

Its usually the purchaser's solicitors who require the certs to back up the notification from the builder under the contract that its ready for inspection and snagging.

If the purchaser's solicitor is remote from the action, he may simply refer the snag list to the purchaser for his attention, who may not have retained the services of his own inspecting architect and the issuing of the certs specifically exclude snag list items from their governance.

I've seen houses handed over with agremeent by all parties without a working kitchen because the purchaser is going to fit their own and its been delayed, same for bathrooms and toilets where the goods delivered were incorrect or where held up in customs.

All irrelevant regarding the discussion of a building being Substantially Completed.

onq wrote: »

All certificates are qualified - much to the chagrin of High Court Judges.

The fact is that clients won't pay an architect to be on site every day and make a photographic record of all works, so there are qualifications as to what has been witnessed and thus what is being certified.

Even the builder cannot guarantee the work of every workman.
Recall the case of the concrete stairs that collapsed a few years ago and it was found that the wrong fixing bolts had been used - even though the guy that installed them was years in the business and the sub-contracting firm was a recognised firm in good standing.

At some point we might attempt a definition of Compliance, Completion and the Substantial and Practical variations on those terms and what they might mean. It would be service to the industry if we got it even half way right - and there would STILL be people who would disagee with us.

All certificates are qualified but I think you know I was referring to the qualification of certificates regarding conditions of plannings more so then workmanship or grades of materials.

sydthebeat

onq wrote: »

It manifestly is not substially completed and definitely not compliance with its permission while it has no roof on it.
Completion in terms of the permission refers back to the conditions and whether the plans and specifications are referred to - this is usually done in Condition 1.
.

onq

i think PUT has dealt with this point adequately above.

We are debating 'substantial completion' ... not 'substantial compliance'. These are two very very different beasts and as PUT has said, any build can be substantially compliant at any stage of the build.

When does the term 'substantially complete' actually become a factor in out day to day work??
In my experience it only occurs in two situations... when determining substantially complete in regard to transitional arrangements of building regs.... and determining substanitally complete in regard to applying for an extension to the duration of a planning permission. I think everyone is in agreement that in both these situations 'substantially complete' means external walls complete (or 'wall plate level'- as its referred to in my area).

what other situation do you envisage this term becoming a factor in??

Mellor

onq wrote: »

What you need is a definitive judgement of a High Court, a Guideline from the DOE or even a working Guideling from a local authority.

The TGD link I posted would be a DOE definition, not a guideline.

I spoke to a lady in the Planning Office in Dun Laoghaire Rathdown Co Co on this subject yesterday and she confirmed their position that for an application for extension of duration of planning, the building must be complete to roof level.

A lady, so it could of been anyone, most likely a clerk, and hardly a planner.

I think there is more useful discussion to be had on this point alone and I would ask that references be posted where cited, not just "in the TGD's" because that's a lot of ground to cover.

I posted exactly were in the TGD it was, and tbh honest, everyone that has dealing with the TGDs should know were it is. At least where to look. Nobody is expected to memorise all the TGDs, but being familar with them is a must.

I cannot remember substantial completion being covered in any TGB BTW, but perhaps I missed that part.

Really, I find this surprising. I'll repost for clarification.

Mellor wrote:

Another place that substantially complete comes up is the transitional arrangements of new building regulations. And as with "potential grey terms" in other legal documents, the main text is normally preceded by a definitions.

TGD Part L (dwellings) (as well as most new TGD in the last few years) wrote:

However, the foregoing document may continue to
be used in the case of dwellings:

- where planning approval or permission has been
applied for on or before 30 June 2008, and
substantial work has been completed by 1 July
2009.

Substantial work has been completed” means that
the structure of the external walls has been erected.

I really cant see how you can't find the above, the transitional arrangements section is quite small.