Building Control Regs - Commencement Notice

kildarejohn

I must start by explaining that I am not legally qualified and have not read all the relevant Act & Regs. The following statement appears on the web site of several County Councils -
"If you commence works or a change of use of a building in the absence of a Valid Commencement Notice, there is no provision to retrospectively submit a Commencement Notice This may affect your ability to ever occupy, lease or sell your building"

As a non-legal person the above seems to contravene all principles of natural justice & constitutional rights.
Is it really the case that if a person employs an architect and builder, and due to a mistake by the architect or builder the work commences without the correct Commencement Notice, that the building owner has absolutely no legal remedy, and has no option but to write off the amount he has spent buying the site and must abandon the work and go off and build elsewhere.

Peregrinus

This isn't an artificially-created legal problem, but an inevitable practical one.

Once works are under way, inspection becomes impossible - e.g. once you have started to construct the walls, inspection of the foundations and footings can never occur. The only remedy in this case is to demolish what you have done so far, and start again from scratch, this time taking care to give notice so you get the appropriate inspections, certifications, etc.

If you fail to give a commencement notice and as a result inspections are missed and cannot later be replicated, they are not going to "forgive" your omission and allow some future purchaser to be mislead into thinking that these works were inspected and certified as compliant. Hence your choice is between demolishing, giving proper notice and starting again, or continuing with works which will remain uncertified, and taking the legal and economic consequences of that.

If the error is that of your architect or builder, of course you can pursue them for a remedy in the form of damages to cover the cost of demolishing and starting again, or in the form of the diminution of value to your land as a result of not having compliant building works.

kildarejohn

Peregrinus, I appreciate your point that the intention of the legislation is to ensure that inspections take place. My argument is that the negative consequences of the legislation for a property owner can be excessive and disproportionate.
The situation I have in mind is where all inspections are fully and correctly carried out by competent professionals and the building is physically 100% in compliance with Building Regs; physically there is 100% compliance, the only non compliance is a legal technicality.

A hypothetical example would be - Commencement must take place in 28 days after submitting Notice. Due to exceptionally bad weather the builder cannot work as planned, so commences on day 29. The BCA hears of this, decides to be pedantic and tell the client the commencement notice is invalid; by the time the Council letter arrives 2 weeks work have been done.
A reasonable legal penalty in such circumstances would be for the client to suffer a fine of say €100. To tell the client that he cannot live in his house, because there is no legal way of correcting his transgression, is absurd.
The BC Regulations have for years allowed for Fire Certificates to be revised retrospectively; if this can apply to something as critical for Life Safety as Fire, why can it not apply to an administrative form like a Commencement Notice.

MarkAnthony

You've still recourse to have the legislation struck down as unconstitutional on the grounds of infringing property rights. One side will argue it's a method to keep planning in check another will argue it's disproportionate and punitive.

I'm not really sure where this conversation can ultimately go than an agreement to disagree.

Mr. Incognito

MarkAnthony wrote: »

You've still recourse to have the legislation struck down as unconstitutional on the grounds of infringing property rights. One side will argue it's a method to keep planning in check another will argue it's disproportionate and punitive.

I'm not really sure where this conversation can ultimately go than an agreement to disagree.

No you dont. This is ridiculous advice. Do you have ten years to wait for it to get to the Supreme court where you will lose. And you WILL lose that case.

Property rights can be infringed by the state on objective public grounds. Cpo orders for example. First year constitutional law.

Speak to a property solicitor.

MarkAnthony

Mr. Incognito wrote: »

No you dont. This is ridiculous advice. Do you have ten years to wait for it to get to the Supreme court where you will lose. And you WILL lose that case.

Property rights can be infringed by the state on objective public grounds. Cpo orders for example. First year constitutional law.

Speak to a property solicitor.

This is quite obviously a theoretical discussion. Yes you do.

CPO show a public good. This is clearly a punitive measure along the lines of strict liability.

First year criminal law, second year administrative law.

plodder

kildarejohn wrote: »

Peregrinus, I appreciate your point that the intention of the legislation is to ensure that inspections take place. My argument is that the negative consequences of the legislation for a property owner can be excessive and disproportionate.
The situation I have in mind is where all inspections are fully and correctly carried out by competent professionals and the building is physically 100% in compliance with Building Regs; physically there is 100% compliance, the only non compliance is a legal technicality.

A hypothetical example would be - Commencement must take place in 28 days after submitting Notice. Due to exceptionally bad weather the builder cannot work as planned, so commences on day 29. The BCA hears of this, decides to be pedantic and tell the client the commencement notice is invalid; by the time the Council letter arrives 2 weeks work have been done.
A reasonable legal penalty in such circumstances would be for the client to suffer a fine of say €100. To tell the client that he cannot live in his house, because there is no legal way of correcting his transgression, is absurd.
The BC Regulations have for years allowed for Fire Certificates to be revised retrospectively; if this can apply to something as critical for Life Safety as Fire, why can it not apply to an administrative form like a Commencement Notice.

I agree. It might be different if the inspections were done by the local authority or some other third party, but practically, I'd imagine it's likely to be the architect him/herself, which does push the issue into the realm of 'technicality'. But, I couldn't comment on the actual legal consequences.

Victor

kildarejohn wrote: »

A reasonable legal penalty in such circumstances would be for the client to suffer a fine of say €100.

In which case people would never submit the commencement notice and just pay the €100.

To tell the client that he cannot live in his house, because there is no legal way of correcting his transgression, is absurd.

There is a way to remedy the transgression - open up the wall / floor / foundation and demonstrate that the rules were complied with. This may require a new planning permission and commencement notice.

The BC Regulations have for years allowed for Fire Certificates to be revised retrospectively; if this can apply to something as critical for Life Safety as Fire, why can it not apply to an administrative form like a Commencement Notice.

So, you feel death from a collapsed building is better than death by fire?

Such changes would likely require that the fire officer be satisfied that the works are in compliance with the new proposals - quite practical when one is moving a door from point A to point B. Not so easy when trying to determine whether the fire barrier in a cavity wall has been installed properly.

MarkAnthony wrote: »

CPO show a public good.

Not having people injured or killed because of bad building is also a public good.

MarkAnthony wrote: »

This is clearly a punitive measure along the lines of strict liability.

Strict liability is legal! The problem is that effectively, the would be applicant has effectively concealed the evidence of their crime - not something to be accepted lightly.

kildarejohn

Mr. Incognito wrote: »

Property rights can be infringed by the state on objective public grounds. Cpo orders for example.

MarkAnthony wrote: »

CPO show a public good. This is clearly a punitive measure along the lines of strict liability.

plodder wrote: »

I agree. It might be different if the inspections were done by the local authority or some other third party

Victor wrote: »

In which case people would never submit the commencement notice and just pay the €100.

There is a way to remedy the transgression - open up the wall / floor / foundation and demonstrate that the rules were complied with. This may require a new planning permission and commencement notice.

Thanks for comments all. Victor has obviously failed to read my post where I outlined that the hypothetical case we are discussing would involve full compliance with Building Regs. He also clearly has no understanding that Fire Safety Engineering is as complex a discipline as Structrual Engineering.

Plodder is correct in noting that it is the Architect, not the Local Authority who do inspections, so the time limits for validity of Commencement Notice have no practical purpose.

I believe most people who approach this from a common sense rather than a legalistic viewpoint would agree that a Law which imposes the same penalty for an innocent and trivial change to the scheduling of work as for criminal negligence is Bad Law.

Carawaystick

You must remember that the founder of the last right wing party in Ireland voted against allowing adults buy condoms, so common sense and the law are not so common.

Although you might look at the case of the woman who built her home beside Lough Dan in Wicklow. Planning law ruled she should demolish it, while the bunreacht said her dwelling was invoiable, and the supremes let her stay there.
So I doubt you could be prevented from occupying your house.

MarkAnthony

Victor wrote: »

Not having people injured or killed because of bad building is also a public good.

I've not made any comments on the specific merits of the case, primarily because there isn't one. There can be all sorts of scenarios from evil cigar smoking corporate managers to little starving orphans, and various scenarios where it would be unfair to show some discretion.

Victor wrote: »

Strict liability is legal! The problem is that effectively, the would be applicant has effectively concealed the evidence of their crime - not something to be accepted lightly.

Not criminally (perhaps road traffic is one exception) but I take your point. However it's not to be taken lightly either.

The OP started this thread by making a sweeping statement that this was against basic fairness and justice. I've merely pointed out that there would be other avenues open in an extreme case. Given the slapshot approach that seems to be taken to planning in some cases I can see the need for stiff penalties.

That said look around Dublin at the various derelict sites that could be bought up and done up if it didn't involve hiring a small army of people to do. You can see why people might think some balance should be brought to bear. Again I'm not commenting on the merits of a particular case hypothetical or otherwise.

Mr. Incognito

MarkAnthony wrote: »

This is quite obviously a theoretical discussion. Yes you do.

CPO show a public good. This is clearly a punitive measure along the lines of strict liability.

First year criminal law, second year administrative law.

This is exceptionally confusing.

Step back. What is a commencement notice? Its a formal notification that works are going ahead where planning permission was required and sought.

Hey local authority, you know that planning you gave me, i am going to start now. Okay?

Sure. Go ahead.

What are the penalties? A fine, and difficulties getting the cert of compliance subsequently from the architect. Jail time would never be applied.

What are the remedies? You sue, in contract, the muppet contractor / builder that didnt get it.

You think that a case could be made that this is unconstitutional? By reference to criminal and administrative law? Seriously? Suffice to say we disagree.

Might as well ask your client for money to burn. Thats simply the wrong approach. Its a total waste of time and effort.

There is a severe lack of common sense applied here sometimes.

OP here is a useful link which sets it out

http://www.sdcc.ie/sites/default/files/publications/guide-to-commencement-notices-building-control-regulations-1997-2014.pdf

MarkAnthony

Mr. Incognito wrote: »

This is exceptionally confusing.

Step back. What is a commencement notice? Its a formal notification that works are going ahead where planning permission was required and sought.

Hey local authority, you know that planning you gave me, i am going to start now. Okay?

Sure. Go ahead.

What are the penalties? A fine, and difficulties getting the cert of compliance subsequently from the architect. Jail time would never be applied.

What are the remedies? You sue, in contract, the muppet contractor / builder that didnt get it.

You think that a case could be made that this is unconstitutional? By reference to criminal and administrative law? Seriously? Suffice to say we disagree.

Might as well ask your client for money to burn. Thats simply the wrong approach. Its a total waste of time and effort.

There is a severe lack of common sense applied here sometimes.

OP here is a useful link which sets it out

http://www.sdcc.ie/sites/default/files/publications/guide-to-commencement-notices-building-control-regulations-1997-2014.pdf

It's a theoretical discussion where the OP has stated it's unfair given the most sympathetic possible scenario. Sorry you don't understand about having conversations in the abstract, it's what this forum is for. It's not for providing practical legal advice. As stated above the OP started this thread by making the assumption that the scenario he outlined was against fairness and justice; assuming, I think, that there was no recourse what so ever.

Again sorry that's gone over your head. You're absolutely right that practically in 99.999% of cases is completely the wrong path to go down. Hopefully you can now sleep soundly knowing the OP isn't bothering the Supreme court.

Mr. Incognito

MarkAnthony wrote: »

It's a theoretical discussion where the OP has stated it's unfair given the most sympathetic possible scenario. Sorry you don't understand about having conversations in the abstract, it's what this forum is for. It's not for providing practical legal advice. As stated above the OP started this thread by making the assumption that the scenario he outlined was against fairness and justice; assuming, I think, that there was no recourse what so ever.

Again sorry that's gone over your head. You're absolutely right that practically in 99.999% of cases is completely the wrong path to go down. Hopefully you can now sleep soundly knowing the OP isn't bothering the Supreme court.

My apologies. I didnt realise that this forum was to identify the irrelevant theoretical legal approaches that may apply to 00.001% of the time.

Lawyers are trained to ignore irrelevant approaches. Experience identifies them more quickly usually by going down the wrong road once or twice. Constitutional challenges cost a LOT of money. Millions sometimes, and a LOT of time. Years. More than the cost of the house and suing the contractor put together. Especially when the state would fight this all the way because it would be forced to.

The legislation is clear, objective and proportionate. That should be the end of it.

MarkAnthony

Mr. Incognito wrote: »

My apologies. I didnt realise that this forum was to identify the irrelevant theoretical legal approaches that may apply to 00.001% of the time.

Lawyers are trained to ignore irrelevant approaches. Experience identifies them more quickly usually by going down the wrong road once or twice. Constitutional challenges cost a LOT of money. Millions sometimes, and a LOT of time. Years. More than the cost of the house and suing the contractor put together. Especially when the state would fight this all the way because it would be forced to.

The legislation is clear, objective and proportionate. That should be the end of it.

And would be if this was a place for giving out legal advice as I have pointed out. It's a place for having conversations in the abstract. But again to be clear you're absolutely right, on the off chance the OP was going to launch into a supreme court challenge, on his own, without the aid of legal advice you've saved the day.

mickdw

Going away from the legal chat but when you are expected to work with an online system that is not functional and full of errors and issues, to create a system with no regularisation procedure for a error that might have occurred for any number of reasons even with most competent professional working on it is reckless imo.
For example, I have registered commencement for one project to date on the online bcms.
I recently received an automated mail from the system in relation to a completely unrelated project which it had listed me as building owner. The owner had same name as me but there was no reason whatsoever to associate my contact details with the file. I was then given full access to the commencement file, authorised to accept the role of building owner, or alter all other roles. We got it cleared up in the end but say I had accidently accepted the role that was offered to me and the certifier was then notified that that role had been accepted etc and continued on. Imo, the commencement would be null and void. I find it extraordinary then that there is no method of regularising the works.

kildarejohn

mickdw wrote: »

to create a system with no regularisation procedure for a error that might have occurred for any number of reasons even with most competent professional working on it is reckless imo. .

Glad to see that at last somebody has got the point I was trying to make!

Regularisation is the word I was looking for that perhaps will "click" with the legal people!

If a mother registers the birth of her child with incorrect details, she can rectify the matter latter and re-register or regularise the birth certificate. It does not make the child illegitimate for life as is the case with an invalid Commencement Notice.
Similarly if a new car is incorrectly registered it can be corrected.

A Commencement Notice is the Birth Certificate for a building. There should be a similar process as for Birth Certs or Vehicle Registration Certs

mickdw

kildarejohn wrote: »

Glad to see that at last somebody has got the point I was trying to make!

Regularisation is the word I was looking for that perhaps will "click" with the legal people!

If a mother registers the birth of her child with incorrect details, she can rectify the matter latter and re-register or regularise the birth certificate. It does not make the child illegitimate for life as is the case with an invalid Commencement Notice.
Similarly if a new car is incorrectly registered it can be corrected.

A Commencement Notice is the Birth Certificate for a building. There should be a similar process as for Birth Certs or Vehicle Registration Certs

The system is ill thought out without doubt. Much like legislation brought in years back re fire certs, it took 10 years to get right. It's just a pity things cannot be got right from the start.
In relation to these new regs in general, the government had a golden opportunity to put in place a water thought system but they were so focused on removing all government liability that we have now a crazy system, one that will no doubt fail in the not too distant future.
From a professional view point, I have moved away from certifying new builds. From my side of things, a small business can no longer function under these new rules.
There is increased liability for engineering professionals under these regs. Now, the issue I have is that i must retain indemnity insurance for years to cover works in the past. It is not the policy in force at the time of certification that covers works, it is the policy in force at time of claim.
Now I, as a small business owner have no idea what the insurance rates are going to be like in 5 years time - likely multiples of current rates given the additional liabilities due to these regs. It is therefore impossible to price a job in the current climate as I will be taking on an unknown insurance liability.
A insurance bond type system would have worked where any given project was covered for a number of years with payment in its entirety upfront. This could then be priced into job, protecting professional and as payment would be made up front, homeowner would be protected again engineer going bust.
As it stands, it's a joke.

kildarejohn

A Supplementary Question-

The Building Control Regulations/ Acts are hard to follow, as the new 2014 Regs must be read in conjunction with the various earlier Regs/Acts which have not been repealed - anyone know if there is a consolidated version available anywhere?

plodder

There are unofficial consolidations at www.environ.ie, but it's not got the latest 2014 regs included.

http://www.environ.ie/en/DevelopmentHousing/PlanningDevelopment/Planning/PlanningLegislation-Overview/PlanningRegulations/